Clark v Bunyan (Listing Officer)

Council tax – Listing – Alteration – Respondent valuation officer serving notice of alteration on appellant of intention to place property in higher band for council tax purposes – Valuation Tribunal for England (VTE) dismissing appellant’s appeal – Appellant appealing – Whether VTE applying wrong test for measuring property for valuation purposes – Whether decision irrational – Appeal dismissed In 2006, the appellant purchased a detached chalet bungalow known as Popinjay, Balmoral Road, Kingsdown, Kent constructed as part of a development of four detached bungalows (the property). The accommodation comprised a kitchen/dining room, reception room, conservatory, three bedrooms, study, family bathroom and two en-suite bathrooms.  It had the benefit of a double garage. The price paid on 6 March 2006 was recorded as £320,000. The property was entered into the Council Tax Valuation list in Band E with effect from 6 March 2006, based upon the respondent valuation officer’s survey which indicated a reduced covered area (RCA) of 137m2. In 2021, a council tax proposal was submitted for an adjacent property said to be the same size as the appellant’s property. Following an investigation, the respondent concluded that the size of the property had been incorrectly recorded in 2006: it should have been 166m2, based on: the developer’s scale plans provided; and measurements taken by the respondent from the street while on location assessing the adjacent property. The respondent then served a notice of alteration on the appellant indicating that the property would be placed into the higher Band F, with effect from 28 July 2021. The appellant argued that that increase was inaccurate. The Valuation Tribunal for England (VTE) dismissed the appellant’s appeal, concluding that the weight of evidence demonstrated that the increase to Band F for the property was not excessive. The appellant appealed. Held: The appeal was dismissed. (1) Under regulation 6(1) of the Council Tax (Situation and Valuation of Dwellings) Regulations 1992 for the purposes of valuations  under  section  21 (valuations for purposes of lists) of the Local Government Finance Act 1992, the value of any dwelling was taken to be the amount which, on certain assumptions, the dwelling might reasonably have been expected to realise if sold in the open market by a willing vendor on 1 April 1991, known as the antecedent valuation date (AVD). Listing officers were required to determine what value each property within its area would have sold for on the AVD in accordance with the statutory assumptions in regulation 6(2). That involved a hypothetical sale on that date: taking the property in its actual location and with its actual character on the relevant date; making the assumptions required by reg 6(2); and taking into account any other legally factors about the property which would affect its value. It was for the VTE, a specialist body, to assess the evidence and come to its own expert conclusion on value. It need not assess a specific value for the property, only the band in which it fell. Nor was a specific methodology prescribed. It was open to the tribunal to choose what type of evidence to consider, including the tone of the list (ie, the assessment of comparable hereditaments). Where another entry in the list was under challenge at the date of the tribunal hearing, it remained admissible and it was a matter of weight as to how reliable it was as evidence of value: Thomas Scott & Sons (Bakers) Ltd v Davis (VO) (1969) 16 RRC 30 and Domblides v Listing Officer [2008] EWHC 3271 (Admin) considered. (2) The appellant’s allegation that the VTE applied the wrong test (RCA) for measuring the property for valuation purposes did not raise a question of law. Given that there was no measuring methodology set down by law, and that there were different methodologies, the VTE’s assessment of whether the RCA method was appropriate, was for its expert judgment based on all the material before it: Domblides v Listing Officer [2008] EWHC 3271 (Admin) considered. There was nothing in the regulations which prohibited the specific valuation technique adopted by the respondent. However, even if the issue of measuring methodology was a question of law, there was no error by the VTE in selecting the RCA approach. There was expert advice that RCA was the appropriate method. The respondent and the VTE needed to be able to compare properties (including their size) to produce a reliable and accurate valuation of the property at the AVD. Its decision that RCA was not inappropriate was not irrational. (3) The respondent had the power to revise the banding of the property once the inaccuracy as to its size had come to her attention, and once she had satisfied herself that the property should have been in a different band. That was what regulation 3(1)(b)(i) of the Council Tax (Alteration of Lists and Appeals) (England) Regulations 2009 allowed and that was required by the respondent’s legal obligation to maintain an accurate list. It was clearly established that a listing officer could amend the valuation list to correct banding errors; that included circumstances where she found an earlier banding had been based on incorrect size measurements. The respondent was entitled to correct an error and was under a duty to correct inaccuracies in the valuation list for which she was responsible. In so doing, she might take in any evidence relevant to the question of what an accurate valuation of the property would have been on the AVD: Adam v Listing Officer [2014] EWHC 1110 (Admin) and Listing Officer for Cornwall v Dannhauser [2018] EWHC 3162 (Admin); [2018] PLSCS 207 applied. (4) The respondent did not act to “impugn the list”, as alleged by the appellant. The issue was straightforward: in 2021 the respondent discovered that a material mistake as to size had been made when the property was measured and banded in 2006. She acted to correct the valuation list which she determined was inaccurate due to the mistake. On the wording of the statutory provisions, and, on the authorities, she was entitled to do so: Chilton-Merryweather v Hunt [2008] EWCA Civ 1025; [2008] PLSCS 248 considered. (5) The VTE undertook a careful and considered analysis of the various comparables and applied the correct valuation method to consider the band. Its decision was not irrational, nor vitiated by any other legal error. The challenge to that analysis was, in very large substance, an appeal on the merits which was not within the jurisdiction conferred on the court by regulation 43(1) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009. The appellant appeared in person (assisted by a McKenzie friend); Nicholas Grant (instructed by HMRC) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Clark v Bunyan (Listing Officer)