Baker (listing officer) v Gomperts

The claimant listing officer assessed the defendant’s property for council tax purposes on the basis that it comprised two dwellings: a maisonette in the basement and on the ground and first floors and a separate flat on the second floor. The valuation tribunal allowed the defendant’s appeal against that decision on the basis that no evidence had been produced to show that the maisonette and the flat had been purposely constructed or adapted for use as separate living accommodation or that the property had been or was intended to be occupied as two separate dwellings. The appellant appealed against that determination to the High Court, contending that the tribunal had misdirected itself as to the correct test to be applied when asking whether a building had been constructed or adapted for use as separate living accommodation for the purposes of the Council Tax (Chargeable Dwellings) Order 1992. Article 2 of the 1992 Order defined “single property” as property that would, other than for the order, constitute one dwelling. Further, the phrase “Self contained unit” meant a building, or part thereof, constructed or adapted for use as separate living accommodation. Article 3 provided that where a single property contained more than one self-contained unit, the property should be treated as comprising as many dwellings as there were such units included in it, each unit being deemed a dwelling. Held: The appeal was allowed. The tribunal had applied the wrong legal test and had failed to address the correct legal question with the consequence that the matter would be remitted to be determined by a differently constituted tribunal. For the purposes of considering whether accommodation constituted a self-contained unit within article 2 of the 1992 Order, one was concerned with what had been physically constructed on the ground (an objective “bricks and mortar” approach) rather than the subjective intention of the builder. The test was whether the accommodation could be used as separate living accommodation so that the intended use or purpose, whether actual or prospective, was irrelevant. The question was one of fact and degree for the tribunal and turned on the physical characteristics of the building as originally constructed or adapted: R (on the application of Coleman (listing officer)) v Rotsztein [2003] EWHC 1057 (Admin) and Hayes v Humberside Valuation Tribunal [1998] RA 37 considered). Timothy Buley (instructed by the legal department of Revenue & Customs) appeared for the appellant; Robert Fookes (instructed by Bates Wells & Braithwaite) appeared for the respondent. Eileen O’Grady, barrister