MHCLG has issued Guidance on relief to council tax payers in response to COVID-19 pursuant to Section 13A (1) (c) of LGFA 1992, funded by Government under Section 31 of LGA 2003.

ATOS v FYLDE BOROUGH COUNCIL (2020) EWHC 647 ( QB ) is concerned with the liability, or rather non-liability, of persons for non-domestic rates in circumstances where the person said to be liable does not occupy the entirety of the hereditament in the relevant rating list, and part is let to others. Saini J reviewed the statutory framework and case law at paras 23-68 and gave his main conclusion at paras 69-75 : essentially rateable occupation has to be exclusive occupation. The Judge approved Ryde on Rating : “ if the whole building is entered in the rating list as one hereditament, no one tenant is liable for the rate of the whole, because he is not the occupier of the whole, nor can he be compelled to pay the rate on the part he occupies…”

The 11 March 2020 Budget documents include Terms of Reference for a “fundamental” Review of the Business Rates System, setting out the Review’s objectives, scope and governance, with a view to the Review reporting in Autumn 2020.  An objective is to improve the current system, and to consider more fundamental changes in the medium-to-long term, including alternatives to business rates.  The scope will not consider the overall level of funding for local government.

In McGrath v Camden LBC (2020) EWHC 369 (Admin) a Divisional Court held that the Council’s omission to serve on ratepayers information specified by Schedule 4 to the Business Improvement Districts (England) Regulations 2004, S.I. 2004/2443, made under Section 49 of the Local Government Act 2003, at the same time as serving a demand notice for payment of a BID levy in Hampstead Village did not render the demand invalid. The statutory liability to pay the levy is not qualified by reference to any legislative requirement other than service of a demand notice.  Moreover, there is a distinction in Schedule 4 between what is required to be “contained in” a demand notice and what is required to be “supplied with” a demand notice.

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When should contiguous units of property occupied by the same occupier be entered on the non-domestic rating list as a single hereditament, pursuant to Section 64(3ZD) of the Local Government Finance Act 1988, as amended, and the Rating (Property in Common Occupation) etc Act 2018?

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In Derby Teaching Hospitals NHS Trust and 16 Others v Derby City Council and 44 Others (2019) EWHC 3436 (Ch) the 17 Claimant NHS Foundation Trusts accepted that they occupied Hospitals and other properties on which they were liable to pay non-domestic rates to their local rating authorities, but claimed that they were entitled to a discount because they were a charity or occupied the relevant property wholly or mainly for charitable purposes: Section 43(6) of the Local Government Finance Act 1988.  The claims failed.  Morgan J held that Foundation Trusts, under the consolidating National Health Service Act 2006, albeit public benefit corporations, are not charities within Sections 1-4 of the Charities Act 2011.

In cases brought by the Secretary of State [2019] EWHC 2890 (Ch) the High Court declined to wind up companies in the public interest that operated business rate avoidance or mitigation (but not evasion) schemes. The companies relied upon the exemption from business rate of companies that are being wound-up, compulsorily or (creditors or members) voluntarily. The respondent companies operated schemes to allow landlords of vacant commercial premises to avoid paying business rates. That was achieved by the landlords leasing the properties to a special purpose vehicle (SPV) incorporated by the respondents, with the effect that the SPV became the property owner for the purpose of business rates. Each lease had a fixed term of three years and provided that its purpose was to transfer liability for business rates to the SPV, that the landlord would pay a monthly fee, and that the landlord was able to determine the lease at any time on payment of a determination premium, which increased as time passed. Once the SPV held several leases, it would be placed in members voluntary liquidation. The respondents accepted that the determination premium provisions were entirely artificial and had been devised with a view to creating something of value to the SPV so that the liquidator would be required to maintain the members voluntary liquidation for the duration of the lease, so as not to lose the opportunity of receiving the determination premium. Read more »

The true test is whether the occupation is “of value”, contrasted with an hereditament that is sterile in any and everybody’s hands.  In Telereal Trillium v Hewitt (VO) (2019) UKSC 23 the Supreme Court endorses the distinction drawn in previous Land Tribunal cases between a property which is unoccupied merely because of a surplus between supply and demand in the market, and a property which has “reached the end of its economic life”. The Valuation Office Agency’s guidance on whether a property is obsolete lists several relevant considerations, including whether the property was occupied at the antecedent valuation date, and whether there are other similar properties in the locality that are occupied. This highlights the issues of fact which may become relevant in drawing the distinction in particular cases. Read more »

In Rossendale BC v Hurstwood Properties and Wigan Council v Property Alliance Group (2019) EWCA Civ 364 actions by local authorities seeking to recover National Non-Domestic Rates from property developers in respect of unoccupied hereditaments were struck out where the developers had set up schemes to avoid the payments involving transferring leases of the properties to special purpose vehicle companies.  The Ramsey principle of purposive interpretation of the statutory scheme did not apply and there was no reason to pierce the corporate veil.

These appeals concerned two schemes. Both schemes involved the grant of leases of properties to SPVS without assets or liabilities which, as part of the scheme in question, were then placed in voluntary liquidation or were allowed to be struck off the register of companies as dormant companies and thus dissolved. Read more »

In Alam v Valuation Officer (2018) UKUT 266 (LC) Mr Alam is the proprietor of the restaurant.  He took a lease of a Property. His agents submitted a proposal to reduce the rateable value of the Property.  In their proposal they stated correctly that Mr Alam was the occupier of the Property but also stated that the Property was “owner/occupied”.  The proposal was completed in that way because of a misunderstanding between Mr Alam and his agents.  As a result, the agents did not include any information in response to the question “if not owner/occupied, is a rent or licence fee paid?” and, in particular, did not state the rent payable, the date it had first become payable and the date of the next rent review. All of this was information required by Regulation 6(3) of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (“the 2009 Regulations”).  The issue in Mr Alam’s appeal to the Upper Tribunal (Lands Chamber) concerned the consequence of the mis-statement of the capacity in which Mr Alam occupied the Property and the omission of any information about the rent payable.  The Valuation Tribunal for England (“VTE”) found that the proposal was invalid, explaining: Read more »