Mrics (Valuation Officer) Re: White Waltham Aerodrome [2014] UKUT 0291 (LC)

IN THE MATTER OF AN APPEAL
UT Neutral citation number: [2014] UKUT 0291 (LC)Venue BY, MICHAEL PEARCE MRICS, (Valuation Officer), Re: White Waltham Aerodrome,, Waltham Road,, Maidenhead, SL6 3NJ, Before: Martin Rodger QC, Deputy President, Sitting at: Upper Tribunal (Lands Chamber), 45 Bedford Square, London WC1B 3DN, on, Tim Buley , instructed by HMRC Solicitors office for the Appellant, The following cases are referred to in this decision:, Society of Medical Officers of Health v Hope (VO) [1960] AC 551, Goulborn v Cowell (VO) [2012] RA 303, [2011] UKUT 417 (LC), Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, R (Corus UK Limited) v Valuation Office Agency [2002] RA 1, Lane v Woolway [2006] RA 410, Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702, DECISION, Introduction
Between
Mrics (Valuation Officer) Re: White Waltham Aerodrome
Date 3 June 2014
[1]This appeal from a decision of the President of the Valuation Tribunal for England, Professor Graham Zellick QC, raises important issues concerning the effect of a decision of the Valuation Tribunal and the powers of a Valuation Officer. The President described the main issue as being “of fundamental and profound importance to the administration of justice, albeit that we are dealing with the narrow field of non-domestic rating.” That issue arises out of the contention by the VO that where an entry has been made in the non-domestic rating list to give effect to a decision of the Valuation Tribunal, the VO is entitled to alter that entry on the basis that he considers it to be erroneous. The President considered that “to countenance the VO’s argument would be subversive of the rule of law, an affront to justice, repugnant to the statutory framework, and evince contempt for the Tribunal by the losing party in the proceedings.”[2]The VO now appeals from the President’s decision (which was made in these proceedings under the name West London Aero Club v Hazell (VO)). The original appellant to the VTE, West London Aero Club has not participated in the VO’s appeal and the only oral argument was presented by Mr Tim Buley on behalf of the VO. The Facts[3]White Waltham Aerodrome (“the Airfield”) is the home of the West London Aero Club (“the Club”) and occupies a site at Maidenhead in Berkshire of approximately 80 hectares.[4]At the commencement of the 2005 rating list the Airfield was entered in the list with a rateable value of £100,000 with effect from 1 April 2005.[5]On 19 March 2008 the Berkshire Valuation Tribunal (the local predecessor of the VTE) allowed an appeal by the Club against the entry in the 2005 list and reduced it to £65,250. The VO did not appeal against that decision, nor did he seek correction of any clerical error nor apply for a review, but rather he accepted the decision and altered the rating list accordingly.[6]The buildings on the Airfield include two large aircraft hangars each having an area of 910m 2 . In its decision, made after an oral hearing at which the VO presented his own case, the Berkshire Tribunal decided that the area of each of the hangars was 217.9 m 2 . This determination was contrary to the facts subsequently agreed before the VTE in this case, and arose out of an uncertainty in the Tribunal’s mind which may have been caused by the manner in which the VO’s calculations were presented in his written evidence. Whatever the reason, however, the Berkshire Tribunal based its valuation on the assumption that the hangars had an area considerably smaller than was in fact the case. There appears never to have been any issue between the parties over the true area of the hangars. Nonetheless, despite the Berkshire Tribunal explaining the reasons for the uncertainty and resolving it as it did, the VO appears not to have appreciated that the valuation had been arrived at on an erroneous basis.[7]The Berkshire Tribunal’s decision was that the rateable value of the Airfield should be reduced to £65,250 with effect from 1 April 2005. Shortly after that decision the Club lodged a further proposal requesting that the rating assessment be reviewed to take into account an office building which it asked to be merged with the Airfield assessment. The VO was agreeable to that proposal and on 16 July 2008 issued a notice of alteration to the 2005 Rating List increasing the rateable value of the Airfield to £67,000 with effect from 1 October 2007.[8]On 26 October 2009 the Club sought a reduction in the proposed rateable value for the Airfield included in the draft 2010 list. Two reasons were given for that request namely that the VO’s assessment assumed that the hangars were each 910.4m 2 whereas the basis of the 2005 assessment had been that they were 217.9m 2 and secondly, that two portable buildings which had existed in 2005 had subsequently been removed. The first basis of the request drew attention to the Berkshire Tribunal’s conclusion concerning the area of the hangars. In response to the proposal, on 29 October 2009, the VO altered the 2005 list to take account of the removal of the portable buildings and to value the Airfield on the basis that the hangars each had an area of 910.4m 2 . The combined effect of these steps was to increase the rateable value to £81,850 with effect from 1 April 2009, being the date on which the VO assumed the material change of circumstances (the removal of the two portable buildings) had occurred. That assumption has never been challenged by the Club.[9]The Club appealed against the alteration in the 2005 List and the appeal eventually came before the President whose decision was given on 5 June 2013. The President’s Decision[10]The Club’s case before the President was that the VO’s power to revalue a hereditament, whether on the occasion of a material change of circumstances or otherwise, was constrained by any previous Valuation Tribunal decision relating to that hereditament. The VO was not entitled to ignore or impugn the original Berkshire Tribunal decision during the currency of the rating list to which that decision related and whether the decision was right or wrong, for as long as it was not altered by the Valuation Tribunal or on an appeal, the VO must accept that it represented a correct assessment of rateable value subject only to any material change of circumstances. The Club relied on the doctrine of res judicata or issue estoppel as preventing the VO from disregarding the Berkshire Tribunal’s decision. The Club also argued that, if the doctrine of res judicata did not apply, it was, in the alternative, an abuse of process for the VO to substitute his own assessment for that of the Berkshire Tribunal except to the extent necessary to reflect the material change of circumstances.[11]Before the President the argument for the VO was that his statutory powers could not be circumscribed by a decision of a Valuation Tribunal and that neither of the doctrines relied on, res judicata and abuse of process, applied to the performance of his statutory duty. In support of that proposition the VO relied on a decision of the House of Lords, Society of Medical Officers of Health v Hope (VO) [1960] AC 551. Additionally the VO argued that because a material change of circumstances had taken place it was his duty to carry out a re-valuation of the hereditament “which combines both the MCC and the correct valuation in a single, unified, indivisible act, which means that having regard to any previous VT decision is inappropriate and impossible” (see paragraph 20 of the President’s decision). This submission was supported by reference to a decision of this Tribunal (A J Trott FRICS) in Goulborn v Cowell (VO) [2012] RA 303.[12]As I read his decision the President did not accept the arguments of either party. Mr Buley on behalf of the VO sought to persuade me that the President had applied the doctrine of res judicata in defiance of a binding decision of the House of Lords. I do not think that is a correct reading of the decision which (at paragraph 38) included an explicit acceptance of “Mr Buley’s submission that the House in Hope thought that estoppel per rem judicatam could not apply at all to a valuation court’s decision.” It is clear that the President was unconvinced by the reasoning of Lord Radcliffe in Hope (which I will return to below) but the basis on which he found in the Club’s favour was not the common law doctrine of res judicata but was that the duty of the VO to maintain an accurate list had to be read subject to the statutory scheme for determination of rateable values as a whole, of which the VO’s role was only part. That is clear from paragraphs 40-43 of the President’s decision in which he said this: “40. It is clear from Hope that, within the life of a list, the Valuation Court’s decision is decisive and must be respected. It is a question of jurisdiction…. It has no jurisdiction beyond the life of the list, but is determinative during the life of the list. To hold that it is not a matter of or subject to res judicata is not to deprive it of the essential quality of a judicial decision albeit terminal or of limited duration.41. The respondent makes much of the fact that he was acting within the framework of the statutory provisions, his duty being to maintain an accurate list and that duty being triggered by the appellant’s MCC application (under NDR Regulations, Reg. 4(1)(b)). The respondent sees the statutory framework as ranging from initial assessment in order to compile a list, via any proposal by the ratepayer, to maintaining the list, which means correcting any errors at any time. These statutory duties and powers, the respondent argues, cannot be compromised or circumscribed by non-statutory considerations (such as res judicata ).42. The statutory framework must indeed be the starting point for the consideration of the issue raised in this appeal, but the VO’s delineation of that framework is seriously incomplete. That framework includes the automatic referral of disputes to the Tribunal (s.55(5)); reg. 13(1)), the Tribunal’s powers on an appeal (Procedure Regulations, reg. 38), and the rights of further appeal to the Upper Tribunal ( ibid , reg 42) and beyond. To ignore these additional features of the statutory arrangements leads to an imperfect understanding of the VO’s powers and duties. Those powers and duties must be read within the context of the statutory provisions as a whole and not selectively or in isolation.43. Thus, the answer to the question posed in this case can be found entirely within these statutory provisions without resorting to extraneous common law principles or doctrines”.[13]Earlier in his decision the President had considered what he described as a preliminary issue, namely, the VO’s contention that the re-valuation triggered by the material change of circumstances could not be constrained by the earlier decision of the Berkshire Tribunal and that, by taking into account the true dimensions of the two hangars, the VO was not challenging or impugning that decision. At paragraphs 18-23 the President explained why he did not agree with the VO’s submission, either as a matter of fact or of law. It was clear on the facts that the VO was seeking to correct what he regarded as errors in the Berkshire Tribunal’s decision. Moreover:
“As a matter of law, the argument fails because the VO’s valuation relates, subject only to any later material change of circumstances, to the value at the antecedent valuation date and that had already been definitively established by the VT (subject only to any review, correction or appeal).”
[14]The President disagreed with the VO’s argument that the Tribunal’s decision in Goulborn was authority for the proposition that on a revaluation following a material change of circumstances the correct approach was to undertake a “single, unified, indivisible act.” In rejecting that submission the President said this:
“21. Goulborn is authority for no such proposition; it is authority only for when the elements of the revised valuation take effect. The fact that the Lands Chamber (after a false start) held that they were both effective from the same date, i.e. the date of the MCC does not support the respondent’s argument. 22. Indeed, it follows from the fact that the Lands Chamber identified the two elements separately that, even if they run from the same date, they are distinct elements in the intellectual exercise which the VO must carry out on an MCC assuming there is no prior VT decision to constrain him. 23. It is clear to me that in the instant appeal the VO reduced the RV modestly in respect of the MCC and then raised it substantially to correct the error made by the VT. Neither Goulborn or any other argument can refute that conclusion.”
[15]Having considered the Club’s argument that the VO’s actions in altering the 2005 list were an abuse of process, but expressing no final view on that issue, the President stated his conclusion at paragraph 55 in these terms:
“A VO cannot reassess or re-value a hereditament during the life of a rating list where a Valuation Tribunal has determined the RV except on the basis of a material change of circumstances or one of the other grounds specified in NDR reg. 4(1) and then only to reflect that MCC or other ground. Any change within the life of the list must start with the Tribunal’s determination of the value (however wrong the VO may believe, rightly or wrongly, it to be).”
[16]The outcome was, therefore, that the appeal was allowed and the VO was ordered to alter the value of the Airfield in the list to £66,000 with effect from 1 April 2009. That figure was agreed between the parties and represented a deduction of £1,000 from the assessment they had agreed in July 2008 to take account of the removal of the two portable cabins. The new assessment was to take effect from 1 April 2009. Relevant authorities[17]The main focus of Mr Buley’s submissions was the decision of the House of Lords in Society of Medical Officers of Health v Hope (VO) [1960] AC 551 which, Mr Buley submitted, the President had misunderstood and misapplied. Hope was concerned with the applicability of the doctrine of res judicata to decisions of local valuation courts (a predecessor of the VTE). The principle that a matter which had been adjudicated upon is received as the truth means that, subject to the existence of any right of appeal and the pursuit of such an appeal to its conclusion, the decision of a court of competent jurisdiction represents the final word on a dispute between the parties. As Lord Bridge explained in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 the doctrine is based on two principles of public policy, which, rendered into English, are the need for there to be an end to disputes and that a party should not be troubled twice by the same cause. These principles are not confined to litigation in the private law field but extend equally to adjudications in public law. As Lord Bridge said at page 289 D:
“In relation to adjudicators subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to include that principle can properly be inferred as a matter of construction of the relevant statutory provisions.”
[18]Hope was not cited in Thrasyvoulou , as the President pointed out, but it can properly be understood as an application of the approach taken by Lord Bridge. In Hope a local valuation court had upheld a ratepayer’s claim to exemption from rates on the grounds that it was a scientific society to which a specific statutory exemption applied. When the next rating list was compiled the VO once again included the society’s premises, arguing that the valuation court decision did not bind him in relation to the new list. The Court of Appeal and the House of Lords each agreed with that contention. As the President was at pains to point out and as appears from the first sentence of the leading speech of Lord Radcliffe, the only question raised by the appeal in Hope concerned the application of the principle of res judicata “to the making of a new valuation list”. The case was not concerned with the question whether a decision of a valuation court could be departed from by the VO during the currency of the list to which the decision related. Lord Radcliffe regarded the fields of rating and taxation generally as territory in which the res judicata principle did not operate for two reasons. The first was that the jurisdiction of the local valuation court was a limited one and its function was restricted to deciding the liability of a ratepayer for a defined and terminable period. The view which the valuation court took on any particular issue was incidental to its function of fixing a specific rating assessment, as Lord Radcliffe explained:
“For that limited purpose it is a court with a jurisdiction competent to produce a final decision between the parties before it: but it is not a court of competent jurisdiction to decide general questions of law with that finality which is needed to set up the estoppel per rem judicatam that arises in certain contexts from legal judgments.”
The second reason militating against the application of the res judicata principle to the rating sphere was the special position of the VO as a neutral official, with no personal interest in the outcome of a determination, charged with the statutory duty of compiling and maintaining the list “in correct and legal form.”[19]Mr Buley also referred to the description of the VO’s function accepted by Sullivan J in R (Corus UK Limited) v Valuation Office Agency [2002] RA 1, at paragraph 46:
“If a valuation officer’s duty to compile and maintain the list is to mean anything, it must be a duty to compile and then maintain an accurate list.”
[20]Where the VO becomes aware that an entry he has made in the list is inaccurate it is undoubtedly his duty to correct the error. In Lane v Woolway [2006] RA 410 the Lands Tribunal (N J Rose FRICS) considered the appeal of a ratepayer who had made a proposal that his premises be removed from the rating list following the erection of scaffolding outside them. On considering the proposal the VO appreciated for the first time that the assessment in the list was inaccurate because it attributed a value to only one of the three floors of the building, and he altered the list to correct that omission. The Lands Tribunal drew attention to the duty described by Sullivan J in Corus and went on to comment on the task which the VO was required to undertake in the circumstances:
“In the present case, as a result of the ratepayer’s proposal Mr Jones, the valuation officer then dealing with the matter, realised that the assessment in the list was inaccurate, since it only attributed a value to one of the three floors. Mr Jones was then duty bound to correct the inaccuracy in order to maintain an accurate list. To do so he had, firstly, to estimate the value of the entire property before the scaffolding was erected and then to deduct from that figure a percentage to reflect the degree of disability that was suffered.”
[21]Reliance was also placed by Mr Buley on the decision of the Tribunal in Goulborn . In that case the VO had taken the opportunity of a material change of circumstances arising from the re-development of premises adjoining the hereditament to correct a substantial error in the 2005 compiled list. The error had been caused by the use of inappropriate comparables resulting in a very much lower rateable value than the VO subsequently considered appropriate. Having decided that there had been a material change of circumstances the Tribunal considered whether the VO was required to correct errors in the compiled list as they became known to him or whether he must wait until a new list was compiled. The Tribunal confirmed that the VO was entitled to alter the list on his own initiative where it was shown to be inaccurate because of errors in a previous assessment. A further question then arose which was addressed in an addendum of 17 July 2012 to the Tribunal’s original decision. That question was as to the date from which the alteration in the list, partly attributable to a material change in circumstances and partly attributable to the correction of the original error, should take effect. In paragraph 62 of its original decision the Tribunal had determined two effective dates for the alteration of the list with incremental increases, the first to reflect the effect of the material change of circumstances and the second, from a later date, to correct the inaccuracy. On further reflection the Tribunal accepted the submission on behalf of the VO that:
“The only way to assess the rateable value was by reference to Schedule 6 to the 1988 Act. The only outcome that was authorised was to enter the correct rateable value at that date.” (paragraph 74) The consequence was, as stated in paragraph 94(i), that: “When giving effect to such a material change of circumstances the valuation officer, given his duty to maintain an accurate list under section 41 of the 1988 Act, must value the hereditament in accordance with the provisions of Schedule 6 of that Act, namely a value that will also correct any inaccuracy that existed in the original compiled list entry.”
Discussion[22]It is to be noted at the outset that this case, unlike Hope , concerns the power of the VO to alter a rating list during its currency. Moreover, unlike both Lane and Goulborn, which are examples of that power being exercised, the entry in the list in this case followed a decision by the Valuation Tribunal.[23]Mr Buley suggested that the decision of the President disregarded Hope, and that the reasoning in Lord Radcliffe’s speech was equally applicable to an alteration to correct an inaccuracy in the list which resulted from a decision of the Valuation Tribunal made in relation to the same list, and was not restricted to whether res judicata limited the scope of the entry which the VO might make in a subsequent list. As I have already indicated, it seems to me that the President agreed that the doctrine of res judicata does not apply to decisions of Valuation Tribunals in the rating field generally and that he based his conclusion on the relationship between the duty of the VO to maintain an accurate list and his obligation to respect the determination of the Valuation Tribunal (which was subject to the same duty). Mr Buley submitted that, if it was accepted that the doctrine of res judicata did not apply in the rating context, there was then no legal basis for the President’s conclusion that the VO was constrained during the life of the list by a decision of the Valuation Tribunal.[24]Mr Buley put his argument on two alternative bases. His first and more extreme submission was that the VO is under a duty to maintain an accurate list and so that whenever it comes to his attention that the list is inaccurate, he is bound to take steps to correct it, even if those steps involve an alteration to an entry determined by the Valuation Tribunal on a decision within the life of the same list.[25]Mr Buley’s alternative submission was that when the VO becomes aware of a material change of circumstances (as he did in this case when he was informed that the portable cabins had been removed) he is under a duty to consider whether any alteration to the list is appropriate to maintain its accuracy. If he concludes that a material change of circumstances has occurred, he is duty bound to undertake a valuation in accordance with paragraph 2(1) of Schedule 6 to the Local Government Finance Act 1988. That valuation should have regard to the Valuation Tribunal’s prior decision, and treat it as highly persuasive, but where it is apparent that the prior decision was arrived at on a mistaken premise, the VO’s duty is to value the hereditament on the correct basis rather than to incorporate and perpetuate the earlier mistake in his own re-valuation.[26]I do not accept the first of Mr Buley’s arguments, essentially for the reasons given by the President. Once the Valuation Tribunal has determined a rateable value, that is the rateable value of the hereditament. It is not open to the VO to proceed on the basis that the rateable value is wrong, because it is a rateable value determined in accordance with the procedures laid down by the 1988 Act. The only route by which it can be established that such a rateable value is wrong is by the pursuit of an appeal to the Upper Tribunal (or possibly by inviting the Valuation Tribunal to review its own decision on the basis that it was arrived at on a mistaken understanding of the facts). Unless a material change of circumstances provides a basis for a reconsideration of the entry in the list, the VO is bound to accept the entry whatever doubts he harbours about it, because his duty to maintain an accurate list exists within a hierarchical framework of adjudication and appeal which he is bound to respect. It would undermine the whole system of appeals if the VO was entitled to substitute his own view of the “correct” rateable value whenever he was satisfied that a decision of the Valuation Tribunal was erroneous for whatever reason. To be fair to Mr Buley even in its most extreme form his argument shied away from the proposition that the VO was free to substitute his own view without giving considerable weight to the prior determination of the Valuation Tribunal. He drew an analogy with the field of immigration adjudication and referred to the decision of the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2002] UKUT 0702 (IAT) which established the entitlement of one adjudicator to differ from the findings of a previous adjudicator where there was good reason to do so. That case, however, concerned adjudicators at the same level in the jurisdictional hierarchy and arose in a very different context. It is not apparent to me that it has any application to the relationship between the VO and the VTE.[27]One course which the VO could have taken in this case when he came to appreciate the mistake of fact in the decision of the VTE was to pursue an appeal against the decision out of time. Such an appeal cannot be brought as of right but first requires an application to the Upper Tribunal for an extension of time within which to provide a notice of appeal under rule 24(5) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. Such an application would have led to a judicial determination which may or may not have permitted an appeal to proceed, but which would have had regard both to the VO’s desire to maintain the accuracy of the list and to the public interest in finality, and would have respected the statutory adjudication scheme. No such application was made in this case.[28]The VO’s alternative submission is more attractive.[29]It is clear that when the VO becomes aware of a material change of circumstances he is under a duty to alter the rating list to reflect the new rateable value in light of that change. Giving effect to the VO’s duty to maintain an accurate list identified in Corus, the statutory scheme permits the VO to make alterations by analogy with the grounds for making a proposal listed in regulation 4(1), Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009.[30]Once the VO’s duty to reconsider the entry in the list is engaged by his becoming aware of a material change of circumstances, and where the current entry is a result of a VTE decision, the question arises whether he is bound to adopt the view taken by the VTE on questions of fact. In my judgment the answer to that question is the same as was given in Lane and in Goulborn , namely, that the VO is duty bound to value the hereditament in accordance with the provisions of paragraph 2 of Schedule 6 to the 1988 Act. Where there has been a material change of circumstances the VO’s task is not to assess the sum which must be added to or taken from the previous rateable value to reflect the impact of the change; rather, the VO’s duty is to value the hereditament as it now exists in light of the change. No doubt in most cases the starting point will be the original entry in the list, and the appropriate method of applying the statutory criteria in light of the change of circumstances will be to make an adjustment to the original figure. However, that valuation technique is a means to implement the valuation criteria in paragraph 2 of Schedule 6, rather than a substitute for those criteria.[31]I do not consider that the fact that the original entry in the list was the result of a determination by the VTE or a predecessor valuation tribunal obliges the VO to follow the VTE’s valuation where it is obvious to him that that valuation was based on a mistaken understanding of the facts. The VTE’s valuation will obviously be an important consideration and, save in exceptional circumstances such as these, there is unlikely to be any justification for the VO departing from the VTE’s assessment of the facts and its valuation approach. Nonetheless the task of the VO is not the same as that of the VTE, which was not required to apply the statutory valuation criteria in the changed circumstances facing the VO. The VO is therefore, in my judgment, not constrained by the VTE’s prior decision (as he is where there has been no change of circumstances). I respectfully disagree with the conclusion of the President expressed in paragraph 55 of his decision (see paragraph 15 above). Where there has been a material change of circumstances the VO is not restricted to adjusting the Valuation Tribunal’s determination solely to reflect the effect of the material change, but is required to undertake the single valuation exercise of determining the rateable value of the hereditament in those changed circumstances. A mistake of fact made by the VTE need not be perpetuated and the VO is entitled to start from scratch, giving appropriate weight to the VTE’s decision.[32]There is a final point which would, in my judgment, justify allowing the VO’s appeal even if I am wrong in my acceptance of Mr Buley’s second and more moderate submission. On the facts of this case the rateable value which was altered by the VO on 29 October 2009 was not a rateable value determined by the Valuation Tribunal but was rather the value agreed between the parties in July 2008 following the merger of the office building into the Airfield hereditament. Not only was the VO’s revaluation a change to a figure agreed by the parties, but that figure represented the rateable value of a hereditament which was itself materially different from the hereditament which had been valued by the Valuation Tribunal in its decision of 19 March 2008. The constitutional and jurisdictional considerations which attend interference by the VO in a rateable value which was the result of a Valuation Tribunal decision do not seem to me to apply to an alteration to a rateable value shown in the list as a result of an agreement between the VO and the ratepayer. Decision[33]For these reasons I allow the appeal and direct the Valuation Officer to alter the value of the appeal hereditament to £81,850 with effect from 1 April 2009. Martin Rodger QC Deputy President Dated: 8 July 2014

Cited in 2 later judgments