Bemal Patel v The Commissioners for HMRC [2025] UKFTT 373 (TC)

[2025] UKFTT 00373 (TC)Case No TC09467
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 18 March 2025Date Judgment date: 27 March 2025
Taylor House,
88 Rosebery Avenue,
London, EC1R 4QU.
Appeal reference: TC/2023/16623
STAMP DUTY LAND TAX – residential or non-residential property – whether property “in the process of being constructed or adapted” for use as a dwelling – planning permission constraints
Before
TRIBUNAL JUDGE MARILYN MCKEEVERDR PHEBE MANN
Between
BEMAL PATELAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentMr Sam Glover of counsel, instructed by Haslers Business Services LLP, Chartered Accountants for AppellantMrs Gemma Truelove, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]Mr Patel appeals against a closure notice dated 16 June 2023 refusing an overpayment relief claim made under paragraph 11, schedule 11A to the Finance Act 2003. The overpayment relief claim relates to Stamp Duty Land Tax (SDLT) in the sum of £475,961.20.[2]The issue for this Tribunal is whether the property purchased by Mr Patel was a residential property or a non-residential property at the Effective Date of the Transaction (EDT).[3]This in turn depends upon whether the property was in the process of being constructed or adapted for use as a dwelling at the EDT.[4]All statutory references are to the Finance Act 2003.

Procedural history

[5]Mr Patel purchased a partly completed development with planning permission to convert two properties into one five-bedroom house for £6,679,616. The EDT, the date of completion, was 24 May 2021. He submitted an SDLT return and paid tax of £799,422 on the basis that the property was residential and Multiple Dwellings Relief (MDR) applied.[6]On 18 October 2021, Mr Patel’s agents, Haslers Business Services LLP (Haslers) made a claim for repayment of £475,961.20 overpaid SDLT under paragraph 34 of schedule 10 on the basis that Mr Patel had purchased non-residential property.[7]HMRC opened an in-time enquiry into the overpayment relief claim on 2 May 2023 under paragraph 7 of schedule 11A.[8]In the course of the enquiry, HMRC “discovered” that MDR did not apply to the purchase and should not have been claimed. HMRC issued a discovery assessment under paragraphs 28 and 30 of schedule 10 on 16 June 2023 for the additional SDLT due of £101,250.[9]On the same date, HMRC issued a closure notice in relation to the enquiry, refusing the overpayment relief claim and amending the claim to nil on the basis that the original classification of the property as residential was correct.[10]Mr Patel made an in-time appeal to HMRC against both the closure notice and the discovery assessment.[11]Following a statutory review which upheld HMRC’s original decisions, Mr Patel made an in-time appeal to the Tribunal on 24 November 2023.[12]The parties engaged in an Alternative Dispute Resolution (ADR) procedure, but were unable to reach agreement and the appeal now proceeds to the Tribunal.[13]Following ADR, the Appellant agreed that, if the property was residential, there were not two dwellings at the EDT and accordingly, MDR is not due. If we find that the property is residential, the Appellant accepts that the discovery assessment stands good.[14]The only point now in issue is whether the property was residential or non-residential at the EDT. the facts The background

the facts

[15]Mr Patel purchased a property in Elvaston Place, London (Elvaston Place), together with a property on Elvaston Mews which backed onto Elvaston Place (Elvaston Mews). We will refer to Elvaston Place and Elvaston Mews together as “Elvaston”.[16]Elvaston was previously owned by an individual (the Former Owner). An offshore company, wholly owned by the Former Owner (the Company), owned a nearby mixed-use property in Queen’s Gate Terrace (Queen’s Gate). Elvaston Place and Elvaston Mews were originally separate, self-contained, dwellings, although Elvaston Place had not been occupied since 2013 and Elvaston Mews had not been occupied since 2008.[17]The Former Owner had applied for, and obtained, planning permission to develop Elvaston by amalgamating the two properties into one five-bedroom house. The Company had applied for and obtained planning permission to convert Queen’s Gate into four self-contained flats and one mews house.[18]On 29 November 2017, the Royal Borough of Kensington and Chelsea (the Council) entered into an agreement under section 106 of the Town and Country Planning Act 1990 (the Section 106 Agreement) with the Former Owner and the Company which imposed conditions on the two developments. Part 1 of Schedule 2 of the section 106 Agreement, provided:
“Part 1 The [Former Owner] hereby covenants with and Undertakes to the Council as follows so as to bind the [Elvaston development] only:- Occupation restriction in relation to the [Elvaston] Development 1. Not to Occupy nor permit the Occupation of any part of [Elvaston] for the purposes authorised by the [the Elvaston development planning permission] until the [Queen’s Gate development] has been Practically Completed in accordance with the [Queen’s Gate development planning permission] and is ready for Occupation to the written satisfaction of the Executive Director [of Planning and Borough Development].”

Occupation restriction in relation to the [Elvaston] Development

[19]The reason for this condition is set out in the Report to the Council planning committee by the Executive Director dated 7 November 2017. The Council’s development plan seeks to increase the supply and choice of housing in the Borough and the amalgamation of Elvaston Place and Elvaston Mews would result in the loss of a residential unit, contrary to the plan. However, the Company had applied for permission to develop five self-contained residential units at Queen’s Gate. Overall, the two developments would create four additional residential units. Provided that the units at Queen’s Gate are available before Elvaston is occupied, the proposals would satisfy the Council’s policies relating to the supply and choice of housing. The section 106 Agreement made this requirement legally binding.[20]The planning permissions for both developments were granted on 1 December 2017.[21]At some time after that, the construction work began at Elvaston.[22]On 15 June 2020, Mr Justice Fox made a Freezing Order, freezing the assets of the Former Owner including Elvaston and the assets of the Company which included Queen’s Gate.[23]In early 2021, Elvaston and Queen’s Gate were offered for sale on the instructions of joint fixed charge receivers. Elvaston and Queen’s Gate had each been mortgaged to a different lender. Each lender had appointed a different estate agent to deal with the sale.

Facts relating to the purchase

[24]Mr Patel made a witness statement concerning his purchase. This was accepted by HMRC and he was not required to give oral evidence. The facts below are derived from Mr Patel’s witness statement and the documents in the Hearing Bundle.[25]Mr Patel is an entrepreneur and owns a pharmaceutical supply company, other businesses in the health sector and a share of a joint venture which has financed a number of property developments.[26]In early 2021, Mr Patel was looking to acquire a home in central London.[27]Mr Patel had viewed Queen’s Gate and the estate agent told him that Elvaston was also up for sale. Both properties were in the process of being developed by the same developer. As set out above, the properties were ultimately sold by receivers.[28]Mr Patel discussed acquiring Elvaston with the agent, Vandermolen Real Estate. He was made aware of the planning restriction under the section 106 Agreement (the Planning Condition). This naturally concerned him, and he obtained legal advice about how it might be dealt with.[29]Mr Patel visited Elvaston for the first time on 9 March 2021 when, he said, “it looked like an empty former building site which had been left in situ for a period of time”. He had been provided with a limited structural inspection report prepared by Hurst Peirce and Malcom which highlighted certain issues. The photographs in the inspection report, dated 8 December 2020, and the photographs in Vandermolen’s brochure (the Brochure) make it quite clear that Elvaston was at this stage, essentially a building site. The building was surrounded by scaffolding and sheeting. New roofs were under construction. The walls were bare concrete or brick and there were exposed girders and joists. The Brochure describes the property as “A freehold part complete residential development opportunity”. It goes on to say:
“We can confirm that the property currently comprises the building’s ‘shell’ where the approved, extant, planning permission has been part implemented, with the basement excavation to … Elvaston Place having been completed and new concrete floors installed through both buildings, however we understand that certain works are still required.”
[30]The “existing floor plans” in the Brochure clearly show that access doorways had been created between Elvaston Mews and Elvaston place so that there were no longer two separate buildings.[31]Mr Patel also visited Queen’s Gate where construction work had also ceased. Mr Patel sought to acquire Queen’s Gate in order that he could complete that development and satisfy the Planning Condition, then sell it on. His bid for Queen’s Gate was unsuccessful. It was bought by a third party and Mr Patel has had no contact with them.[32]Mr Patel recognised that there was considerable risk in buying Elvaston. There was still a significant amount of construction work to do and the Planning Condition was still in place. If Mr Patel could not occupy the property, he would have reconverted Elvaston into two properties and sold them as neither property on its own would be a suitable family home for him. On the other hand, if he completed the building work and was able to live in the property, he would have a residence in his preferred location which would be worth significantly more than he paid for it and the works. A valuation report prepared by Strutt & Parker valued the property in its existing condition and subject to the Planning Condition at £7m. Without the Planning Condition, the current value is £10m. If the development is completed and the Planning Condition lifted, the value would be £16.5m. Having considered the risks v the rewards, Mr Patel made a successful bid for the Elvaston. The original purchase price of £6.9m was reduced by £220,384 to reflect certain payments he had made.[33]Mr Patel completed the purchase of Elvaston on 24 May 2021.[34]As at the date of the hearing, building work is ongoing and the Planning Condition remains in place.[35]Though not relevant to the position at the EDT, Mr Patel commented that the construction of Queen’s Gate appears to be close to completion.

The law

[36]This case turns on whether, at the EDT, Elvaston was or was not “residential property”. Residential property is defined in section 116 as follows:
“116 Meaning of “residential property” (1) In this Part “residential property” means— (a) a building that is used or suitable for use as a dwelling, or is in the process of being constructed or adapted for such use, and (b) land that is or forms part of the garden or grounds of a building within paragraph (a) (including any building or structure on such land), or (c) an interest in or right over land that subsists for the benefit of a building within paragraph (a) or of land within paragraph (b); and “non-residential property” means any property that is not residential property.” (1) In this Part “residential property” means— (a) a building that is used or suitable for use as a dwelling, or is in the process of being constructed or adapted for such use, and (b) land that is or forms part of the garden or grounds of a building within paragraph (a) (including any building or structure on such land), or (c) an interest in or right over land that subsists for the benefit of a building within paragraph (a) or of land within paragraph (b); and “non-residential property” means any property that is not residential property.”
[37]The parties agreed, in the ADR process, that Elvaston was not being used or suitable for use as a dwelling at the EDT.[38]HMRC’s position is that the building was in the process of being constructed or adapted for such use at the EDT. We take “such use” to mean use as a dwelling. The Appellant contends that the property was not in the process of being constructed or adapted for use as a dwelling, because, on the unusual facts of this case, the property which would ultimately be constructed was not a “dwelling” within section 116.

Discussion

[39]We first consider the approach and principles to apply in determining whether a property is in the process of construction or adaptation for use as a dwelling and then apply those principles to the facts of this case.[40]It is clear from the Upper Tribunal cases of Ladson Preston Limited(1) AKA Developments Greenview Limited(2) v HMRC [2022] UKUT 00301(TCC) (Ladson Preston) and Revenue and Customs Commissioners v Suterwalla and another [2024] UKUT 188 (TCC) (Suterwalla) that the correct approach to determining whether Elavaston was in the process of being constructed or adapted for use as a dwelling is to establish the nature of the subject matter acquired by the chargeable transaction. The nature of the chargeable interest is to be considered at the moment of completion. The focus is on the nature of the interest itself, at that time.[41]In Fiander and another v Revenue and CustomsCommissioners [2021] UKUT 156 (TCC) (Fiander), the Upper Tribunal emphasised that the attributes of the property had to be considered as they were at completion and not as they might be or could be later. It is an objective test. The intentions of particular buyers are not relevant. So the fact that Mr Patel bought Elvaston intending to occupy it as a family home is not relevant to the analysis. Fiander also states that the analysis requires a multi-factorial assessment, which should take into account all the facts and circumstances, which will include, but is not limited to, the physical attributes of the property.[42]Suterwalla and Fiander concerned existing buildings. Ladson Preston considered when the “process” of constructing or adapting a building for use as a dwelling commences. First, there must actually be a building or some “physical manifestation” of the construction work. That is, construction work must have begun. Secondly, the construction work must be on the very building that is in the process of construction for use as a dwelling. It is necessary to identify the building which is being constructed or adapted and consider whether it is being constructed or adapted for use as a single dwelling. This means we must consider the nature of the building which will ultimately be built based on objective criteria such as the planning permission or architect’s drawings.[43]The cases mentioned above concerned existing buildings which were not subject to building work or sites where the process of construction had not yet begun. In the present case we have a building which is part way through the process of construction, and we need to consider what building will result at the end of the construction process and whether that building will be a “dwelling”.[44]By definition, the finished building does not yet exist. We must therefore determine whether the finished building (Finished Building) completed in accordance with the applicable planning permission etc, will be suitable for use as a dwelling.[45]The question of suitability for use was considered in the Upper Tribunal case of Mudan and another v Revenue and Customs Commissioners [2024] UKUT 307 (TCC) (Mudan). Mudan concerned a property which was in a state of disrepair. The appellant in that case contended that, at the time the property was purchased, substantial work was required to make the property safe to live in. The property was not therefore suitable for use as a dwelling and so was not residential property within section 116(1). The Upper Tribunal decided that the phrase “suitable for use as a dwelling” was focussed on the fundamental characteristics and nature of a building, which may be informed by its previous use, rather than its habitability at the effective date.[46]In assessing suitability for use as a dwelling, we must take account of any legal restrictions as well as the physical characteristics of the building. See Revenue and Customs Commissioners v Ridgway [2024] UKUT 36 (TCC) (Ridgway) at [36] and [37]. Any legal restrictions on use whether arising from freehold or leasehold covenants or from planning law forms part of the multi-factorial analysis and it is for the FTT to determine the weight to attach to the relevant factors (Ridgway at [47]). It is also necessary to view the facts realistically.[47]Ridgway also makes clear (at [65]) that it is the existence of the restriction which is relevant and not, for example, the fact that a local authority may not enforce a planning restriction as the latter is not a relevant, objective, factor.[48]The FTT case of Fitzgerald v the Commissioners for His Majesty’s Revenue and Customs [2025] UKFTT 00089 (TC) is an example of a case where, on the facts, the Tribunal gave particular weight to a planning restriction, even though there was evidence it was unenforceable, and concluded that, as a result of the particular restriction, an annex to a main house was not suitable for use as a single dwelling within section 116.[49]The parties agree on the principles to be applied, as set out above.[50]Mr Glover submitted that, applying these principles to the present situation, the test is more straightforward in relation to the Finished Building than in the case of an actual building, because we must assume that plans in place at the EDT will be implemented. The question is, will the Finished Building be suitable for use as a dwelling, and therefore a dwelling for section 116(1) purposes? He submits that the test in this case is not multi-factorial because all the relevant factors are derived from the plans and planning permissions as they exist at the EDT.[51]Mr Glover went on to contend that the Planning Condition which imposed a legal restriction on occupation of the Finished Building, and was in force at the EDT was to be given particular weight, indeed was determinative.[52]He argued that the Finished Building, completed in accordance with the planning permission would be a five-bedroom residence, but the existence of the Planning Condition meant that the Finished Building could not be occupied (when considered at the EDT). The possibility that the Planning Condition might be lifted, on the completion of Queen’s Gate or by agreement, or that it might not be enforced is irrelevant. The purpose of the Planning Condition is clear; it is to prevent occupation until the additional residential units are available.[53]Mr Glover submits that the existence of the Planning Condition precludes the use of Elvaston as a dwelling. If the Finished Building cannot be used as a dwelling, then Elvaston could not be in the process of being constructed or adapted foruse as a dwelling at the EDT. It follows that Elvaston was not a “dwelling” within section 116(1) at the EDT and so was not residential property. Mr Glover concludes that it must therefore be non-residential property subject to SDLT at the lower, non-residential rates.[54]Mrs Truelove, for HMRC, agrees that there must be a physical manifestation of construction works on the very building being built at the EDT. It is clear that there was a physical manifestation of the building, work having begun in accordance with the planning permission as was evidenced by Hurst Peirce & Malcolm’s structural report and the photographs in the Brochure.[55]Mrs Truelove acknowledged that legal restrictions are relevant, but she submits they do not negate the need for a multi-factorial assessment, but form part of the of it. We agree.[56]She submits that the fact that the Finished Building could not be occupied until some future date did not alter the physical attributes of the building or its purpose. The building was being adapted, in accordance with the planning permission, to turn it into a single dwelling. The Planning Condition, which prevented occupation did not affect the fundamental characteristics of the Finished Building; it would be a dwelling. Mrs Truelove made no assumptions about the Planning Condition being lifted but noted that it was not a permanent prohibition on occupation, but a condition which could be met in the future.[57]Mrs Truelove took us to Mudan at [50] to [54] where the Upper Tribunal drew a distinction between “use” and “occupation”. The Tribunal expressly stated that the terms were not synonymous and firmly rejected the contention that “suitable for use” (as a dwelling) effectively meant “ready for immediate occupation/use”. It emphasised that use was not interchangeable with occupation in construing section 116 and there was no support for an interpretation which assesses suitability primarily by reference to the length of time it might take before a property was ready for occupation. As noted, the property in Mudan could not be occupied at the EDT because it required a lot of work to be done on it to make it safe and secure.[58]Mr Glover sought to distinguish Mudan on the basis that the building in that case had never ceased to be a dwelling. In the present case it was agreed that Elvaston was not suitable for use as a dwelling at the EDT as it was, in effect, a building site.[59]Considering matters as at the EDT, there was a physical manifestation of a building which was in the process of construction or adaptation. Building work had begun and the building was effectively a building site. Looking at the objective evidence of the planning report and the planning permission, the construction process was intended to result in the amalgamation of the original two buildings into a single five-bedroom residence. The Finished Building would undoubtedly be suitable for use as a family home. In considering whether it would be “suitable for use as a dwelling” within section 116(1) we must consider all the facts and circumstances, including the Planning Condition.[60]We agree with the Tribunal in Mudan that “occupation” is not the same as “use” and we consider that this applies generally, not just in the context of the need for repairs and renovation. The Planning Condition imposes a prohibition on occupation, unless and until a certain event occurs. It does not affect the essential characteristics and nature of the Finished Building. The Tribunal in Mudan said at [47]:
“So, the focus of the enquiry made necessary by the wording in s 116 is to determine whether the essential characteristics and nature of the chargeable interest that is acquired are those of a dwelling…”
[61]In the present context, we must focus on the essential characteristics and nature of the Finished Building and, objectively, the Finished Building, completed in accordance with the planning permission in effect at the EDT, will be suitable for use as a dwelling. The Planning Condition does not affect the suitability of the Finished Building for use as a dwelling; it affects the ability of Mr Patel to occupy it. The Planning Condition does not place a permanent bar on occupation. It would be extraordinary if it did, given that the purpose of it is to ensure an increase in the number of residential units available in the Borough. It is simply a condition, which may be met, even though it is uncertain when or if that will happen.[62]Having considered all the facts and circumstance and having carried out the multi-factorial analysis required, we conclude that Elavaston was, at the EDT, a building that was in the process of being constructed or adapted for use a dwelling. Accordingly, it falls within the definition of residential property in section 116(1) and is subject to the higher residential rates of SDLT.

Decision

[63]For the reasons set out above, we have concluded that Elvaston is residential property. Accordingly, no repayment of SDLT is due. The parties agree that MDR is not available, so the discovery assessment stands good.[64]We dismiss the appeal.

Right to apply for permission to appeal

[65]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 27th MARCH 2025