the forgotten ingredient of rateable occupation

Institute of Revenues Rating and Valuation www.irrv.org.uk enquiries@irrv.org.uk

The forgotten ingredient of rateable occupation

Cain Ormondroyd IRRV (Hons) Barrister, Francis Taylor Building

@CainOrm

e: cain.ormondroyd@ftb.eu.com

Rateable occupation

•  Actual •  Beneficial •  Exclusive •  …

Rateable occupation

•  Actual •  Beneficial •  Exclusive •  Permanent or non-transient

The forgotten ingredient?

(1)  Context of the cases: liability vs rateability

(2)  What is permanence? What

factors are relevant? (3)  Permanence as the

forgotten ingredient

Rateability/liability

The orthodox view “The concept of the hereditament for rating purposes is inextricably bound up with the concept of rateable occupation” Ryde at [C113] The challenge Sedley LJ in Vtesse Networks Ltd v Bradford (VO) [2006] EWCA Civ 1339 at [40]

What is permanence? (1)

•  Not about duration alone – there is no ‘rule of thumb’ that 12 months is required (Robert McAlpine v Payne [1969] RA 368 overruled by Dick Hampton v Lewis [1975] RA 269) •  Nature of occupation also relevant (Roskill LJ in Dick Hampton considered “the period of occupation as of vastly less importance than its quality and consequences”)

•  Predicted length of occupation 2 cases on parking spaces: Renore Ltd v Hounslow LBC [1970] RA 567 “the expectation must have been that the ratepayers would continue in possession of these three spaces indefinitely” (at p574)) West Yorkshire MCC v Miller (VO) [1984] RA 65 “no long term arrangements to continue [the occupation] year by year” (p71).

•  The nature of the agreement Two cases about the same fairground operator Liverpool Corporation v Huyton-with-Roby Urban District Council (1964) 10 RRC 256: lease for a fortnight a year, therefore too transient. Hall v Darwen Corporation (1958) 2 RRC 329: longer term agreement may have contributed to a finding of permanence.

•  The nature of the thing occupied?

“It is I think clear that for permanent buildings there is no fixed period: theoretically at any rate occupation of a house or a shop for even a day could attract rateability. But the authorities I think show clearly that different considerations apply to temporary structures…”

Michael Rowe QC in Sir Robert McAlpine

“It is I think clear that for permanent buildings there is no fixed period: theoretically at any rate occupation of a house or a shop for even a day could attract rateability. But the authorities I think show clearly that different considerations apply to temporary structures”

Summary: what is permanence?

Relevant factors: •  The length of the occupation; •  The nature of the occupation – intensive or passive/insubstantial? •  The circumstances of the occupation – intention to continue? •  The agreement under which occupation took place – long term or intermittent? •  The nature of the thing being occupied – permanent building?

A different view…

“the word ‘permanence’ appears to signify continuous, as opposed to intermittent, physical possession of the soil; it does not signify that an occupation, in order to be rateable, must be for a long term”

Ryde at [C1113]

The forgotten ingredient

Makro Properties v Nuneaton and Bedworth BC [2012] EWHC 2250 (Admin)

•  MPL leases warehouse to MSSWL; lease ends

•  MSSWL stores 16 pallets of paperwork (0.2% floospace);

•  Pallets removed after 43 days; •  Period of occupation intentional and

repeated; •  No written agreement between MPL

and MSSWL.

Makro Properties v Nuneaton and Bedworth BC [2012] EWHC 2250 (Admin) Permanence?

Factor Present?

Dura%on

Intensive/substan%al

Inten%on to con%nue

Long term agreement

Permanent building

Factor Present?

Dura%on ?

Intensive/substan%al

Inten%on to con%nue

Long term agreement

Permanent building

Factor Present?

Dura%on ?

Intensive/substan%al û

Inten%on to con%nue

Long term agreement

Permanent building

Factor Present?

Dura%on ?

Inten%on to con%nue û

Long term agreement

Permanent building

Factor Present?

Dura%on ?

Long term agreement û

Permanent building

Factor Present?

Dura%on ?

Permanent building ü

Sunderland v Stirling Investments [2013] EWHC 1413 (Admin)

•  Empty warehouse used by CMML for Bluetooth box;

•  The box 95 × 65 × 30 mm, battery 350 x 240 mm, aerial draped out of a window;

•  Present for exactly six weeks; •  CMML lease for 43 days.

Sunderland v Stirling Investments [2013] EWHC 1413 (Admin) Permanence?

Factor Present?

Dura%on ?

Permanent building ü

The VOA view… A site in an empty property will form a separate hereditament if it fulfils the criteria necessary to become a separately rateable hereditament. It is a common characteristic that sites are occupied for short, or transient, periods. When occupation exceeds 12 months the site becomes a separately rateable hereditament to the “host” property. The site is a new hereditament and should not be a split from the host hereditament.

Rating Manual, Section 862: Wifi/Bluetooth Sites in Buildings: Practice Note 2010

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