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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> National Car Parks Ltd. v Baird (Valuation Officer) & Anor  EWCA Civ 967 (22 July 2004)
Cite as:  EWCA Civ 967,  1 All ER 53
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANDS TRIBUNAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE DYSON
| NATIONAL CAR PARKS LTD
|- and -
|BAIRD (VALUATION OFFICER) & ANR
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Holgate QC and Ms Nathalie Lieven (instructed by solicitors for the Inland Revenue) for the Respondents
Crown Copyright ©
The Vice-Chancellor :
"The regulations may include—
(a) provision as to the period for which or day from which an alteration of a list is to have effect (including provision that it is to have retrospective effect);
(b) provision requiring the list to be altered so as to indicate the effect (retrospective or otherwise) of the alteration;
"(2) In regulation 4 (time from which alteration to have effect), after paragraph (6) there shall be added -
"(6A) An alteration made to correct an inaccuracy in a list on the day it was compiled shall have effect from that day."
This provision was, however, subject to regulation 6 of the 1990 Regulations, which provided:
"Limit to start of year
6. No alteration such as is described in regulation 4 other than -
(a) an alteration in pursuance of a proposal disputing the accuracy of a previous alteration,
(b) an alteration to enter a completion day determined under Schedule 4A to the Act, or
(c) an alteration required by order of a tribunal under Part V of these Regulations,
shall have effect from a day earlier than the first day in the year in which the alteration is made."
"6.- (1) No alteration such as is described in regulation 4 other than an alteration -
(a) in pursuance of paragraphs (3) and (4) (completion notices) (c), or
(b) made in pursuance of the order of a tribunal under Part V of these Regulations
shall have effect from a day earlier than the first day in the relevant year.
(2) Where the alteration is made in pursuance of a proposal other than a proposal disputing the accuracy of a previous alteration to the list, the relevant year is the year in which the proposal was made.
(3) Where the alteration is made in pursuance of a proposal disputing the accuracy of a previous alteration to the list, the relevant year is the year in which the disputed alteration was made.
(4) In any other case, the relevant year is the year in which the alteration is made."
"..agree on an alteration of the list in accordance with this Part in terms other than those contained in the proposal, and that agreement is signified in writing.."
In such a case the valuation officer is obliged within the next six weeks to alter the list to give effect to the agreement and the proposal is treated as having been withdrawn.
"13.– (1) This regulation has effect subject to regulations 15,...and 44...
(7) An alteration made to correct an inaccuracy in a list on the day it was compiled shall have effect from that day.
(8) An alteration made to correct an inaccuracy in a list (other than an alteration which falls to take effect as provided in the foregoing provisions of this regulation) shall have effect from the day on which the list became inaccurate...
15.– (1) Where, in relation to an alteration that falls to be made on or after 1st April 1992, other than an alteration –
(c) made in pursuance of the order of a tribunal under Part VI of these Regulations,
the day determined in accordance with regulation 13 as the day from which it has effect precedes 1st April 1992, the alteration shall have effect, subject to paragraph (2), from 1st April 1992.
(2) Where the alteration –
(a) is made in consequence of a proposal made before 1st April 1992, and
(b) would have had effect, had the former regulation 6 continued in force, from a day earlier than 1st April 1992,
the alteration shall have effect from that earlier day.
(4) In this regulation and regulation 16 below, "the former regulation 6" refers to regulation 6 of the 1990 Regulations before the substitution made by regulation 4 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) Regulations 1992."
The "former regulation 6" is that which I have quoted in paragraph 11 above. Regulation 17 provided that where an alteration is made "the list shall show the day from which the alteration is to have effect in pursuance of this part".
"The effect of regulations 13 and 15 in each of the present cases, before the 1994 (Amendment) Regulations, therefore, was that, if the VO had altered the list so as to give effect to the agreed assessment, the alteration would have taken effect on 1 April 1992 (under regulation 13(7) and regulation 15(1)); and, if the list had been altered in consequence of the appellant's proposal of 23 (or 5) August 1990, the alteration would have taken effect on 1 April 1990 (under regulation 13(7) and regulation 15(2))."
"Amendments to regulation 15
3. (1) Regulation 15 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 shall be amended in accordance with the following paragraphs.
(2) After paragraph (1) (c), insert –"or
(d) an alteration to which paragraph (3E) applies (a "relevant alteration"),".
(4) After paragraph (3), insert
(3E) This paragraph applies to an alteration made –
(a) so as –
(i) to reduce the rateable value shown in a list for a hereditament; or
"[to extend] the exclusions in regulation 15(1) from the 1 April 1992 rule .....to include (d), alterations falling within a new paragraph, (3E). One of the alterations referred to in (3E) was an alteration made so as to reduce the rateable value shown in the list for a hereditament (paragraph (3E)(a)(i)). From 9 July 1994 on, therefore, where the VO made an alteration to correct an inaccuracy in the 1990 list on the day it was compiled and the alteration reduced the rateable value as shown in the list, the alteration took effect, pursuant to regulation 13(7), on 1 April 1990."
"19. The Manchester hereditament was entered in the rating list that came into force on 1 April 1990 as "Car Park, Former Warehouse and Railway Land, Watson Street, Manchester M2" with an assessment of £343,500 RV. It comprised the converted lower floors of a multi-storey warehouse together with an extensive area of open land to the rear, all occupied as a public car park. On 23 August 1990 J Trevor & Sons served on the VO a proposal to alter the entry in the list by reducing the assessment to £1.
20. The appeal resulting from this proposal was due to be heard by the Manchester South Valuation Tribunal on 31 January 1994. Negotiations with a view to a resolution of the appeal took place between Mr Lilley [ of J.Trevor & Sons, the agent for NCP] and Mr Todd [the valuation officer] during December 1993 and January 1994, and a meeting between them took place in Manchester on 17 January 1994. On 26 January 1994 Mr Todd and Mr Steven Cooper of J Trevor & Sons had a meeting at the subject premises and agreed that the useable capacity of the public car park was 1042 spaces. The next day 27 January 1994 Mr Lilley and Mr Todd spoke on the telephone and agreed that the proper assessment was £260,000 RV. Mr Lilley's agreement to this figure was subject to the approval of his client, and later that day Mr Lilley spoke to Mr Birks and received his instructions to accept the reduction, subject to the operation of the transitional relief provisions. Mr Lilley carried out the necessary calculations and these showed that it would be financially beneficial if the August 1990 proposal were to be withdrawn and he were to request the VO to alter the assessment in the list to £260,000 with effect from 1 April 1992. Mr Lilley then telephoned the clerk to the VT to notify him of his instructions to withdraw the appeal.
21. Despite Mr Lilley's attempted withdrawal of the appeal, the VT on 31 January 1994 considered it. On 3 February 1994 it issued a decision determining that the assessment should be reduced to £260,000 with effect from 1 April 1990. On 18 and 23 February 1994 Mr Lilley wrote to the clerk of the VT asking that the decision be set aside under regulation 45 of the 1993 Regulations. Since there was no objection to this from the VO the VT issued a certificate on 8 March 1994 setting aside the decision. On 10 March 1994 J Trevor and Webster (as the firm was now called) wrote to the VO formally withdrawing the appeal and requesting him to alter the list to show an assessment of £260,000 with effect from 1 April 1992. On 22 April 1994 Mr Todd left the Manchester office to take up new duties in the City of London. Before leaving he had made arrangements for the list to be altered in accordance with the request in the letter of 10 March 1994. On 28 April 1994 the VO gave his notice to the VT withdrawing the appeal.
22. The VO did not in fact alter the list to show the agreed assessment of £260,000 until 30 August 1994. By that time the 1994 (Amendment) Regulations had been made and had come into force (on 9 July 1994), so that the alteration showed as the effective date, in accordance with the amended regulations, 1 April 1990. What had happened following Mr Todd's departure was that the VO's clerical staff had on 9 May 1994 prepared a form, form VO 7001 (referred to as a "pink"), in relation to the appeal hereditament, annotating it with the remark "Please review as per SDT [ie Mr Todd]". Mr Brankin, who had assumed Mr Todd's responsibilities for car parks, did not feel that he could simply accept Mr Todd's valuation despite the fact that it had been agreed with Mr Lilley. He considered that he needed to familiarise himself with the type of property concerned, the local level of rateable values, VT decisions and the history of the case. He could not do this immediately and it was not until 5 August 1994 that, having done the necessary research, he authorised the reduction to the agreed figure of £260,000. The clerical staff made the alteration on 30 August 1994."
"24. The hereditament in the Kensington and Chelsea appeal was included in the rating list that came into force on 1 April 1990 as "Car Park and premises, Bst 380-386 Kensington High Street, London W14 8NL" with an assessment of £60,000 RV. On 5 August 1990 Montagu Evans, as agents for the appellant, served on the VO a proposal to alter the entry by reducing the assessment to £1. The appeal relating to this proposal was due to be heard by the London (South West) Valuation Tribunal on 13 April 1994. Discussions between Mr Mason [of Montagu Evans] and Mr Maudsley [a senior valuer] took place between 11 March and 8 April 1994, and on the latter date they reached agreement that the assessment should be reduced to £18,600. They also reached agreement on the assessments of other NCP car parks, and following their discussion Mr Maudsley faxed to Mr Mason agreement (or, where appropriate, withdrawal) forms.
25. On 12 April 1994 Mr Mason wrote to the VO enclosing signed withdrawal forms in respect of three of the NCP car parks. He also invited him to treat the letter itself as notice of withdrawal of the appeals on the subject hereditament and five other NCP car parks and to "serve Notices at the figures agreed between us retrospective to 1 April 1992". The appeal relating to the subject hereditament was withdrawn on 6 May 1994 by notice given by the VO to the clerk of the VT. On 27 July 1994 (by which time the 1994 (Amendment) Regulations were operative) the VO issued a notice stating that he had altered the list by reducing the assessment of the subject hereditament to £18,600 with effect from 1 April 1990. This alteration was challenged by a proposal served on 17 November 1994, which contended that the effective date should be amended to 1 April 1992. The appeal was heard by the VT, which dismissed it on 16 September 1996, and the appellant now appeals against the VT's decision."
"There was no dispute as to the facts that I have set out. There was, however, dispute as to whether in each case, as the appellant claimed, these facts showed that there was an understanding that the VO would alter the list so as to show the agreed value with effect from 1 April 1992 and that he would do so within a reasonable time. I return to this matter later."
"It is, of course, clear that in each case the VO was aware of why it was that the appellant's agents wished to pursue the course of withdrawing the proposals and looking to the VO to make alterations at the assessments agreed under his general statutory power. It is also clear that the VO, with whom agreement had been reached on value, was happy to go along with this procedure. The evidence does not, however, show in either case that there was any agreement or understanding between the parties that the VO would alter the list to show the assessment that had been agreed with effect from 1 April 1992, whether or not that remained the correct date under the applicable regulations when the alteration was made."
"The nature of the procedure that the appellant was looking to the VO to carry out was to alter the list to the agreed assessment in the exercise of his general duty to maintain the list and in accordance with the regulations. Amendment of the regulations was by then a not infrequent occurrence, and it seems to me inconceivable that the VO could be taken to be undertaking to alter the list with effect from 1 April 1992 even if, at the time he altered it, the regulations as then existing required him to apply some other effective date."
"There is, in any event, a further objection to [NCP's counsel]'s contention. It was not his case that there was an agreement between the parties that the VO would alter the list to show the agreed assessment with effect from 1 April 1992. He said rather that there was an understanding that this would be done, and that the appellant had a right that it would be done that accrued on the withdrawal of the appeal. But whether it is expressed as an agreement or an understanding giving rise to rights and obligations, there is, in my view, a fundamental objection to the argument. The VO's duty under section 41(1) to maintain an accurate list is a duty owed not to an individual ratepayer but to the public at large. It is a duty, therefore, that cannot be qualified by any agreement or arrangement or understanding between the VO and a ratepayer. The agreement on value could not give rise to any duty on the VO's part to alter the list to show that value. It could only provide evidence of what the correct value was; so that if, for instance, before the VO altered the list, further evidence became available that suggested that some other value was correct, the VO would not be obliged – indeed he would not be entitled – to ignore this further evidence."
"I cannot accept the submission that the VO was under any duty or obligation to alter the list within a reasonable time. Such a requirement cannot, in my judgment, be read into the very general terms of his duty under section 41 to maintain the list, and there is no basis for importing some contractual obligation to qualify his statutory duty. It is possible that he could not delay so long in making the alteration that it would be "conspicuously unfair" and thus an abuse of power (see Corus  RA 1 at para 54), but it seems to me impossible to say that a delay of the number of months that occurred in these cases could be characterised as an abuse of power. It is only because the regulations had been amended in a way that was adverse to the appellant before the alterations were made that they now complain. It is not suggested, however, that either VO deliberately delayed so that the 1994 (Amendment) Regulations might be made and might come into force before the alterations were made."
Lord Justice Clarke:
Lord Justice Dyson:
"That duty has to be discharged in the real world, where there are finite resources, and only 24 hours in the valuation officer's day. He may have to give priority to certain known inaccuracies, and defer consideration of other matters which possibly require alteration."