Understanding Chargeable Dwellings Uk

Why does it make reference in law to s115

Dwellings are hereditaments so in law rateable under s115 and not taxable in law

What in law is a dwelling

Can a dwelling exist with hereditament

Answer the question I put to you, Can a dwelling exist with hereditament

Answer the question I put to you, Can a dwelling exist "without hereditament"

Answer the question I put to you, Can a dwelling exist "without hereditament" and refer to mazes case

Yes

So Lord supmtions words are incorrect

States the dwelling cannot exists without establishing first the hereditament

Rating Manual section *: valuation principles From: Valuation Office Agency Published * May * Updated: * October * - See all updates Search this manual Search Back to contents Part *: Hereditament

Yes

Where dose the domestic dwelling fit in without the hereditament? Menu Home Rating Manual section *: valuation principles From: Valuation Office Agency Published * May * Updated: * October * - See all updates Search this manual Search Back to contents Part *: Hereditament The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property. Show all sections *. Introduction and definitions Show *. Identification of the hereditament Hide *.* Introduction In many cases the identification of the hereditament will be a straightforward matter, but it is the first thing that needs to be done. Before a valuation can be made it is necessary to know what is to be valued - the hereditament - and how many there should be. From case law a number of broad rules can be discerned particularly now following the leading case [Woolway (Appellant) v Mazars (Respondent) [*] UKSC *] in which Lord Sumption following a careful examination of established legal rules set out three principles for establishing the hereditament. See details of the case at paragraph *.* below. In England, the Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act * provides for hereditaments meeting a new contiguity condition to be shown in a list as a single hereditament under S64 of the Local Government Finance Act * from *^st^ April *. The provisions of the Act in England have been replicated in Wales by The Non-Domestic Rating (Property in Common Occupation) (Wales) Regulations * but only come into force from *^st^ April *. The legislation effectively reverses the aspect of the Supreme Court decision in Woolway which required non-intercommunicating occupations to be assessed separately and reverts back to the former VO practice where separate but adjoining areas, used for the same purpose and in common occupation are valued as a single assessment. Paragraph *.* below covers the considerations which should be applied to determine whether one or more hereditaments in common occupation, meet the contiguity provisions and provided they are used for same purpose (see Para. *.*) will fall to be assessed as one hereditament. The amendments have effect in England for financial years beginning on *^st^ April * and in Wales for financial years beginning on *^st^ April *. This means that the provisions at Paragraph *.* should be applied to determine the unit of assessment for property in common occupation, for the * rating list in England & Wales; for all * list casework in England – maintenance, Check, Challenge, Appeal – together with outstanding * appeals in England. * casework in Wales and any outstanding * appeals in Wales will ignore the provisions of legislation and have regard to the tests emanating from Woolway v Mazars referred to at *.* *.* The Woolway case The case of Woolway v Mazars ([*] UKSC *) concerned Tower Bridge House, an eight-storey office block in St Katherine’s Way, London. Mazars, a firm of chartered accountants, occupied the second and sixth floors of the building under separate leases. These floors were separated by common areas in the building and were entered in the * rating list as separate hereditaments. The issue for the Supreme Court to determine was whether the two floors formed one single hereditament or two separate hereditaments. The leading authority on the identification of the hereditament was the Court of Appeal decision in respect of Gilbert v S Hickinbottom and Sons Ltd ([*] * QB *) and the principal arguments focused on the meaning and application of the tests used in that case; whether the primary test was geographic (that the occupation can all be ringed around on a map without intervening occupations) or a functional test (that the parts were occupied together in the same building and without inconvenience caused by the lack of contiguity). Since the Gilbert case it has been the practice of VOs to treat contiguous occupations (those that touch each other) as single hereditaments and those that are not contiguous as separate hereditaments unless an ‘essential functional connection’ existed between the parts – that is to say that unless both parts are occupied together they could not properly function according to their character – for example, a golf course divided by a road could not function as a golf course if each part was a separate hereditament. The Supreme Court, as explained earlier did not consider the Gilbert case correctly decided and set out appropriate tests to determine the hereditament bringing English and Welsh law into line with Scottish law, Lord Sumption derived three principles: ‘First, the primary test is, as I have said, geographical. It is based on visual or cartographic unity. Contiguous spaces will normally possess this characteristic, but unity is not simply a question of contiguity, as the second Bank of Scotland case illustrates. If adjoining houses in a terrace or vertically contiguous units in an office block do not intercommunicate and can be accessed only via other property (such as a public street or the common parts of the building) of which the common occupier is not in exclusive possession, this will be a strong indication that they are separate hereditaments. If direct communication were to be established, by piercing a door or a staircase, the occupier would usually be said to create a new and larger hereditament in place of the two which previously existed. Secondly, where in accordance with this principle two spaces are geographically distinct, a functional test may nevertheless enable them to be treated as a single hereditament, but only where the use of the one is necessary to the effectual enjoyment of the other. This last point may commonly be tested by asking whether the two sections could reasonably be let separately. Thirdly, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the subjects. The application of these principles cannot be a mere mechanical exercise. They will commonly call for a factual judgment on the part of the valuer and the exercise of a large measure of professional common sense. But in my opinion they correctly summarise the relevant law.’. So the first and primary test is geographic. Can the property be ring fenced on a map? Where two properties are geographically separate a functional test may still apply and enable assessment as a single hereditament. However, this test is based on the requirement for one part to be essential to the function of the other part and this essentiality must be down to the character of the property as opposed to just the business needs of the ratepayer. The example of an * hole golf course split by a public road referred to in Hickinbottom seems to meet the functional test, but two industrial units located on opposite sides of a public road (as was the case in Hickinbottom) where the occupiers process meant occupation of both was essential to their operation in each part would not. Each unit could be separately let independently of the other and any functional connection between the two is due to the needs of the occupier and not the characteristics of the property. The Woolway case concerned whether it was correct to assess together two non-contiguous offices floors in a multi-let building. The Supreme Court determined, unanimously, that it was not correct to do so because the primary test was a geographic one and was whether the occupation can be ringed around on a map or plan without any intervening occupations. In England, Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act * and in Wales The Non-Domestic Rating (Property in Common Occupation) (Wales) Regulations *, effectively reverse part of this ruling by requiring hereditaments that meet a new contiguity test be treated as a single hereditament – see paragraph *.* below. Mazars did not actually concern adjacent floors, but the judgments of Lord Neuberger and Lord Gill suggested that such floors should be assessed separately unless they intercommunicated directly (for example by an internal staircase). Lord Sumption clearly regarded intercommunication as important and Lord Toulson agreed with Lords Sumption, Neuberger and Gill. Lord Carnwath said that it was “unobjectionable” that such floors should be assessed together and preferred not to express a firm view. It is clear from the speeches that the court’s view was very much that non-intercommunicating floors should be separately assessed. Whilst the Supreme Court decision sets out general principles, it is important to remember that determining the extent of a hereditament in any case will depend upon the individual circumstances concerned and then applying the general principles to those circumstances. *.* Occupation Rating is a tax on the occupation of land and buildings. The ratepayer is taxable in respect of their occupation, but this does not always assist in identifying the hereditament(s) because the ratepayer may occupy one or more hereditaments. For detailed consideration of rateable occupation please refer to [RM S.* Pt.* Rateable Occupation]. In Woolway, the Supreme Court made it clear that the primary test in identifying the rateable hereditament was geographic and it might be thought occupation had little to do with this. However, as Lord Neuberger pointed out (para *): ‘the occupation of premises can in some circumstances serve to control their status as one or more hereditaments. An office building let to and occupied by a single occupier would be a single hereditament, but if the freeholder let each floor of the building to a different occupying tenant, retaining the common parts for their common use, then each floor would be a separate hereditament.’ Occupation, therefore, needs to be considered and will very often determine what is or is not a hereditament. A single geographical unit wholly occupied by one occupier will normally be a single hereditament: the same occupied in parts will be several hereditaments. Note that the final sentence of the quote from Lord Neuberger has been superseded by the change in legislation for contiguous properties through the Rating (Property in Common Occupation) Act (England) and SI */No.* (Wales) referred to at No’s *.*.* & *.*.* and No. *.* Absence of occupation and the four tenets or ingredients of rateable occupation, does not mean that an identified hereditament cannot be entered in a rating list or remain there; the fact the property is capable of separate occupation in accordance with the established hereditament ‘rules’ will enable entry as ‘property which is or may become liable to a rate.’ Sometimes connected companies or organisations will be found to be occupying the same building or site. It may be difficult to decide whether each occupation comprises a separate hereditament or whether there is a single hereditament occupied by the main company with the other companies either being in the position of lodgers, not in paramount occupation of their areas or are merely the main company under another name. Paragraph * deals with the question of “corporate veil” and contiguous occupying companies. The concept of Landlords retaining paramount control over property occupied by lodger was revisited by the UKSC in Cardtronics and the Court of Appeal in Ludgate House which are covered in paragraph *.*. *.* The Geographic Test In England this test has, in many situations, been superseded by The Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act *. See *.* Property in Common Occupation - In England for considerations to be applied in England. The Geographic Test simply looks at whether the premises under consideration constitute a single unit on a plan. This might be a single unit horizontally or vertically - it is not a plan in two dimensions only. Normally this will be a self-contained piece of property i.e. all parts of which are physically accessible from all other parts, without having to go onto other property This unity on a plan is not simply a question of contiguity: it is not simply a question of whether two pieces of property touch. There needs to be direct communication between the two parts. Normally, if it is necessary to go out of one part and into the other part via the street or common parts (for example, from one floor to another in an office building) this will mean the two parts are separate hereditaments notwithstanding there being a single occupier. It might be thought floors next to each other in a building e.g. the second and third floors, or two shops side by side occupied by a single occupier might constitute one hereditament because they are contiguous. However usually there will be no direct communication between them and to reach each of the floors it will be necessary to go out into the shared common parts which are not in the occupation of the occupier or with the shops go out into the street or shopping mall. Floors adjacent to each other in an office building will also not be contiguous to each other because there will often be a void between them which contains servicing equipment and is in the possession of the landlord of the building rather than the occupier. If direct communication were to be established, by piercing a staircase through the floor slab or a doorway through the wall then the occupier would usually be said to have created a new and larger hereditament in place of the two which previously existed. Prima facie, where an occupier has two or more continuous and intercommunicating parts these will form a single hereditament because of the Geographic Test: conversely where an occupier has two or more separate or non-intercommunicating occupations these will not, because of the Geographic Test, form a single hereditament. The outcome of the initial Geographic Test may, though, need to be modified because of the other tests. Note following the Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act * and the Non-Domestic Rating (Property in Common Occupation)(Wales) Regulations *, property that is in the same occupation and contiguous but not interconnecting and used for the same purpose can now be regarded as one hereditament. See paragraph *.* below. Appendix * gives examples of the working of the rules in Wales prior to *^st^ April *. Appendix 1a gives examples of the working of the rules in England following the Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act * and in Wales from *^st^ April * following the Non-Domestic Rating (Property in Common Occupation) (Wales) Regulations *. Connection by cables, wires, pipes and railway lines have generally not been held to create geographic unity. Therefore, premises separated by property in other occupations, including public highways, private roads (where the occupier does not have exclusive rights over the road), railway and canals are not geographically one merely, because of such connections. Appendix * discusses the connection by cables, wires and pipes. *.* The Functional Test Where two parts of a property or two spaces are geographically distinct, a functional test may, nonetheless, enable them to be treated as a single hereditament but this will only be so where the use of one is necessary to the effectual enjoyment of the other. It will be the exceptional situation. This situation might need to be considered where two parts are divided by a public road, e.g. a factory complex with buildings either side of a highway; or where two parts are divided by land in the occupation of a third party. An objective test of the property, not one based on the way the ratepayer uses premises Prior to the Woolway case this question was normally considered on the basis of whether the two parts were ‘functionally essential’ the one to the other. Sometimes this was considered having regard to the particular way the occupier chose to use the two parts. Following Woolway having regard to the actual use is not correct and, indeed, this phrasing of the test appears wrong. Importantly the Functional Test is not a question of examining the particular needs or way of operating the two parts by the actual occupier but looking at the nature of the premises objectively. As Lord Gill said, ‘It cannot be right that geographically separate premises should be valued as one hereditament simply because the ratepayer chooses to link his use of one with his use of the other. To modify the geographical test with considerations of functionality, in this sense of the word, is to add to a clear and objective test the uncertainty of a test that is dependent on whatever happens to be the ratepayer’s choice of use.’ ‘Functionality… is not a reference to the use that the ratepayer chooses to make of the premises. It is a reference to a necessary interdependence of the separate parts that is objectively ascertainable.’ Lord Sumption: ‘the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the subjects.’ Effectual enjoyment Whether the use of one part is necessary to the effectual enjoyment of the other was described in Woolway by Lord Sumption as something that: ‘could commonly be tested by asking whether the two sections could reasonably be let separately?’ To a large extent, of course, any two parts ‘could’ be let separately but the question asks whether they could ‘reasonably’ be let separately. This appears to invoke a test of whether one part could be separately let and therefore separately occupied without significant detriment to the other part. Lord Gill said: ’ Properties that are discontiguous but nonetheless geographically linked, may constitute one hereditament if the occupation of one part would be pointless without the occupation of the other.’ Lord Neuberger echoed this in saying that ‘strict necessity is not the test’ but if one property ‘could not sensibly be occupied or let other than with the other property’ then the two parts should be treated as one hereditament.’ The rare case It is important to note that treating two separate properties as one hereditament is very much the unusual situation. As Lord Neuberger said, ‘Where premises consist of two self-contained pieces of property it would, in my view, require relatively exceptional facts before they could be treated as a single hereditament.’ Lord Sumption described the circumstance as ‘rare’: ‘There are, however, rare cases in which function may also serve to aggregate geographically distinct subjects.’ (para *) How far apart can the geographical separate parts be? In cases before the Woolway case was decided it was very clearly established that the two parts needed to be close to each other - normally simply the distance of a road’s width away. In Edwards (VO) v BP (Llandarcy) Ltd (* LT RA *), the Lands Tribunal (Mr Stuart Daniels QC and Mr Emlyn Jones FRICS) stated the following, which included what has been seen as a very useful and often quoted analogy: ‘Consideration of these two cases leads us to the conclusion that the two separate properties which are not directly and physically contiguous could not properly be regarded as a single hereditament unless firstly, there is an essential functional link between the two parts and secondly, there is a substantial degree of propinquity. One might perhaps consider the analogy of a sparking plug where the gap between the parts is so small that it can physically be traversed in the course of the functioning of the whole. It might also be true to say that the stronger the spark the greater the gap that can be traversed.’ Note: The word “propinquity”, in the context of the above quotation, can be taken to mean “nearness”. In Re the appeals of Evans (VO) (* LT RA *) it was held that the functional connection was not sufficiently strong to overcome a geographical separation of * metres (in which seven intervening buildings were situated) between the two buildings. As Gilbert was disapproved by the Supreme Court in Woolway, cases decided by reference to Gilbert will no longer act as precedent. Given the more restrictive construction given to the Functional Test in Woolway, it is reasonable to assume that these questions would certainly not be interpreted more favourably (in the sense of a single assessment) if they were to be decided today. In Woolway the judges did not mention the degree of separation. However, the test of whether one part could be separately let and therefore separately occupied without significant detriment to the other part is very much more likely to be met where the two parts are geographically very close and the geographical separation small. In the rare cases to which the functional test applies to aggregate two geographically distinct parts it is likely that if the two parts are not close that they will reasonably be capable of separate letting and therefore remain two hereditaments. *.* The test of whether part is ‘Used for an entirely different purpose’ In Woolway Lord Gill noted that functionality might also ‘be relevant where premises that are apparently geographically linked are wholly disassociated’ and gave as an example the hotel and engine sheds in the York Union case (see later). Lord Sumption said that ‘the functional test serves to divide a single territorial block into different hereditaments where severable parts of it are used for quite different purposes.’ This aspect of the functional test has long established that premises, comprising a single geographical unit and in a single occupation, may form more than one hereditament if parts of the premises are used for entirely different purposes. In what is generally referred to as the leading case in respect of the ‘entirely different purpose’ exception, in North Eastern Railway Co v Guardians of York Union * * QB * the railway company were rated, in one lump sum, for the whole of York station (including the railway hotel and refreshment rooms, a number of engine sheds, carriage and wagon shops and similar buildings, an electric light works, a pumping station, coal yards and warehouses), together with running lines and sidings. It was admitted by the respondent that the hotel and refreshment rooms should have been separately rated, but it was denied that any further subdivision was necessary. It was found as fact that various parts might be occupied separately from the railway, but as presently laid out, they were only adapted for use by the railway company themselves. On these facts, it was held that no further subdivision of the property was necessary apart from the hotel and refreshment rooms The entirely different purpose exception to the general rule appears to come from the remarks of Channell J, which, although strictly obiter dicta, are repeated below: ‘We are not asked to give any opinion about the hotel and refreshment rooms. If we had to give a decision upon them, I think the matter would be one of greater difficulty. If it is a mere question of fact whether the hotel is to be treated as a separate hereditament from the rest of the station, speaking for myself, I should be inclined to find that it ought to be so treated. In arriving at that conclusion I should be influenced by the fact that the hotel and the rest of the railway station are used for wholly different purposes……‘ Subsequently decided cases provide some further guidance on the question of what constitutes use of property for an entirely different purpose, such use being sufficient to justify dividing what would otherwise constitute a single hereditament. In Dick Hampton (Earth Moving) Ltd. v Lewis (VO) and United Gravel Co. Ltd. v Sellick (VO) (* (LT RA *), (* CA RA *), which involved the rateability of borrow pits from which huge quantities of gravel were excavated for use in the building up of embankments on adjoining motorways, it was held that although the motorway site and borrow pit were in a single occupation and comprised a single geographical unit, nevertheless there were two hereditaments. In his decision Lord Denning MR said: ’ …The two sites are used so much as one that they might in the ordinary way be regarded as a single hereditament for rating purposes. But the authorities show there are exceptional cases where an apparently single site may be treated as two or more hereditaments…. This is I think an exceptional case. The contractors occupy the two sites in two different capacities. They occupy the site of the motorway in their capacity as contractors doing the work of constructing the motorway, and therefore exempt from rating. But they occupy the site of the borrow pit in their capacity as suppliers of material, like the occupiers of a quarry supplying material for use elsewhere. These two different capacities mean that there are two separate hereditaments, the motorway site is not rateable, but the borrow pit is.’ In Brook (VO) v National Coal Board and Burnwell Coal Ltd. (* CA RA *), Lord Denning MR, determining that a spoil heap whilst being contiguous to and in the same occupation as an adjoining mine nevertheless constituted a separate hereditament said: ‘….I gave as an instance the case where one part is used for some entirely different purpose…. This spoil heap is used for an entirely different purpose from the rest of the mine property. It is to be valued quite differently. And there is the difficulty of ascertaining who is in occupation - whether it is the contractors or not.’ The following general principle emerges from this leading decision: That premises occupied by one person (in the legal sense), and which comprise one uninterrupted and continuous whole so that they form a single geographical unit, should be regarded as a single rateable hereditament, unless (a) any part is used for “entirely different purposes”, and (b) that part is capable of separate occupation. In Trafford Metropolitan Borough Council v Pollard (VO) (* LT RA *), the issue of whether two parts were used for “wholly or entirely different purposes” on the same site was considered. The ratepayer owned a * hectare site in Urmston in Manchester containing the Flixton County Secondary School for Girls and the Urmston Leisure Centre. In brief, the material considerations to be taken into account included: whether the two parts were capable of separate occupation; the nominal purpose for which the two parts of the site were used are as a school and as a sports and leisure centre; the activities comprehended in the use of each part of the site; the extent to which parts of the valuation officer’s school hereditament were used by the public and the sports centre was used by the school; the history of the proposal for dual use facilities; how the sports centre was financed the separate management of the two parts under different statutory powers the degree of physical separation between the two parts. The most significant considerations were that the sports centre and the all-weather pitch were conceived as dual use facilities and were operated as such, there was a significant degree of interaction between the two parts of the site, and the concept of this interaction was a fundamental part of the development of the sports centre. Mr George Bartlett QC (president), said: “….it is a question of fact and degree for the decision maker (valuation officer, valuation tribunal or the Lands Tribunal) whether property in one occupation should be entered in the lists as one or more than one hereditament, it follows that there can be no more conclusive tests for determining the issue when it arises.” He went on to determine: “It is, of course, the case, that the two parts of the site can readily be identified as a school on the one hand and a sports centre on the other and that they are managed separately under different statutory powers. These, in my view, are important considerations, which argue quite strongly in favour of treating them as separate hereditaments. On balance, however, in the light of all the considerations I think that counsel for the ratepayer council is right in contending that the degree of functional connection between the two parts of the site is such that the whole site is properly to be treated as a single hereditament.” *.*.* Where only part is used, does this constitute an entirely different purpose? Perhaps the most obvious example of use for an entirely different purpose is when part of premises is used and part disused, the question then arises as to whether the disused part constitutes a separate hereditament. Historically the general rule is that occupation of part is occupation of the whole but where a part that is capable of separate occupation is completely unused, notwithstanding the fact that it may have been so used when last occupied, a separate hereditament may exist. This leading case in this respect is the decision of the Lands Tribunal in Moffat (VO) v Venus Packaging Ltd (* LT RVR *); (* EG *). The Venus Packaging case concerned a factory, wholly owned by the appellant ratepayer company, part of which was unused following the construction of a new manufacturing facility. The property comprised three distinct parts having been built in phases in *, * and *, of which at the relevant date only the * built (the southernmost) section was occupied, the other parts having been vacated. It was agreed that the other parts were at the date of proposal unoccupied and capable of separate letting, indeed subsequent to the relevant date the two parts were actually occupied, for a period of three months, by separate companies. The Lands Tribunal accepted the general rule that occupation of part of a hereditament is occupation of the whole. However, the Tribunal member Mr Emlyn Jones decided that: ‘…Quite clearly the unused part is not used for the same purpose as the used part.’ As the two parts were clearly defined and the unused part capable of separate letting the property was held to comprise two hereditaments. The existence of a separate hereditament is a question of fact and degree and VOs should be satisfied that the unused part is capable of separate occupation, that there are no acts of occupation however slight; and that although unoccupied the part has not been reserved for future use. *.* The test of Capability of Separate Definition A hereditament must be capable of identification, i.e. it must be sufficiently defined or ring fenced. Two examples of cases where the hereditament has been held not to be sufficiently defined so as to constitute a hereditament include; a golf club who had a licence to use an undefined part of a public forest as a golf course, and a market trader with no right to occupy a defined portion of ground for his stalls. The trader having acquired only the right to a given stall in a given row, and not the right to place one on any definite portion of ground; for further reference, the two cases are Peak (Valuation Officer) v Burley Golf Club (* All ER *, * RRC *, CA) and Spear v Bodmin Union ([*] * LJ, MC *; * LT *; * JP *), respectively. Part of the test of separate definition is the requirement for property to be capable of separate letting or occupation so as to be considered as a separate hereditament. It is suggested that capability for letting does not necessarily equate with capability for separate occupation: it might be possible to achieve a letting of premises not otherwise capable of separate occupation – the latter is the real test. In considering whether a property is capable of separate occupation, regard should be had to the accessibility and facilities/services available within and to the property; the Town and County Planning situation should also be ascertained. A consideration of past patterns of occupation may also provide assistance: a relevant factor in the Venus Packaging case. Although it is permissible when considering if the property is capable of separate occupation to envisage alternative uses, within the constraints of the physical limb of the rebus sic stantibus rule, the possibility of more than minor alterations to the property cannot be considered. *.* The Paramount Occupier - The Lodger and Landlord scenario In determining who is in paramount occupation one needs to consider control. In Westminster Council v Southern Railway [*] AC511 Lord Russel stated “The general principle applicable to the cases where persons occupy parts of a larger hereditament seems to be that if the owner of the hereditament (being also in occupation by himself or his servants) retains to himself general control over the occupied parts, the owner will be treated as being in rateable occupation; if he retains to himself no control, the occupiers of the various parts will be treated as in rateable occupation of those parts.” (Para *) “In truth the effect of the alleged control upon the question of rateable occupation must depend upon the facts in every case; and in my opinion in each case the degree of the control must be examined, and the examination must be directed to the extent to which its exercise would interfere with the enjoyment by the occupant of the premises in his possession for the purposes for which he occupies them, or would be inconsistent with his enjoyment of them to the substantial exclusion of all other persons.” (para *) There have been two recent cases that considered paramount occupation. *.*.* Cardtronics UK Ltd and Others v Sykes and Others VO In Cardtronics v Sykes [*] UKSC *, the UK Supreme Court unanimously agreed that the sites of fixed ATM machines, in Superstores and other retail settings, were capable of being a separate hereditament, the host stores had not sufficiently parted with possession and, when this was considered alongside control and “purpose” they concluded that the host remained in rateable occupation of the site of the ATM. The relationship between the Host store and ATM operator being akin to that of a Landlord and Lodger. The Upper Tribunal’s description of the arrangement in Cardtronics, which was quoted in the Supreme Court at para * concluded that: “The store has not, in any of these cases, parted with possession of the site of the ATM, but it has agreed to confer rights on the bank which substantially restrict the store’s use of that small part of its premises which comprises the ATM site. The store has agreed to that restriction because the presence of the ATM furthers its own general business purposes and because the operation of the ATM by the bank provides the store with an income.” Lindblom LJ in the Court of Appeal (at para’s *-*) I think there is force in the submission [for the retailers] that where the ‘owner’ has given up neither possession nor actual occupation of the site in question, where the purpose for which that site is occupied—in this instance, the operation of an ATM—is a common purpose with that of the other party in occupation and is of direct benefit to the ‘owner’, and where the ‘owner’ retains physical or contractual control over the site to realise that benefit and this can be demonstrated by objective evidence, the principle of ‘general control’ applies, in the normal way… “On a straightforward application of the ‘general control’ principle, in the light of the facts the Tribunal accepted, the correct answer seems to me to have been that the retailer, as ‘owner’, had in all these cases—both internal and external ATM sites—retained sufficient control of the site, in contractual, physical and functional terms, to be regarded as being in rateable occupation of it.” The Supreme Court found for the ATM operators and retail hosts, concluding that; the service provided at the ATM site was not a “distinct business activity, but an integral part of the business activity of the store”, but instead “one of the typical services provided at a modern retail store”, and so regarded by their users”; this situation was different to Southern Railway where selling newspapers was “no part of the railway company’s business” the retailers had given only “limited possession” of the operators of the ATM sites in order to further the retailers own general business purposes, When considering the concept of rival occupations discussed by Lord Russell in Southern Railway Lord Carnworth said (at Para *) that “…By that [rival occupations] I think he meant, not rivals in any commercial sense, but simply distinct business activities (selling newspapers or running railways in Southern Railway)…” *.*.* Ludgate House - London Borough of Southwark v Ludgate House Ltd. & Andrew Ricketts (VO) Ludgate House was an office block comprising ground and lower ground floors with * upper storeys. It was purchased by Ludgate House Ltd [LHL] in * with a view to demolition and redevelopment of the site in the future. In March * the former tenants vacated and in June * a company called VPS (UK) Ltd [VPS] approached LHL with a proposal to protect Ludgate House from squatters by providing live-in guardians. VPS vetted each guardian and issued a strict contract to them which determined how the guardian was permitted to live within Ludgate House. The contract between VPS & LHL provided that VPS would “occupy the building as a licensee” and that no Landlord & Tenant relationship was created, and that LHL “ retains control, possession and management of the property”. VPS further agreed not to allow any guardian to “take possession of the property or any part of it”. The agreement was terminable on 30 days’ notice, at the end of which the building was to be vacant. The agreement also stated that the services were “intended to provide a reasonable deterrent to unauthorised access or detect the presence of certain events.” The licences provided by VPS to the guardians made clear the obligations of the guardian to protect the whole property from intruders, not just their personal living space. Although keys to individual rooms were provided, exclusive possession was not granted and under the terms of the licence a guardian could be requested to move rooms. Access into the building was controlled by security guards */*. The licence obliged guardians to not be away from the property more than * nights in * and restricted the number of visitors a guardian could allow into the building. In return for their obligations to protect the building from trespass and damage the guardians paid a modest rent to live in Ludgate House, which was situated on the South Bank close to Blackfriars tube station. Demolition work started in May * following the termination of the guardians licence agreements with VPS and the termination of VPS contract with LHL. At the VTE, the Vice-President determined that Ludgate House remained one hereditament occupied by the guardians on behalf of LHL as their agent, the VTE held that it was not domestic or a composite as none was used ‘wholly for the purpose of living accommodation’. The Upper Tribunal determined that Ludgate House was not one Hereditament and as a consequence of that decision, that it should be deleted from the rating list. The UT decided that each licensee’s room was capable of being identified as a hereditament and that each licensee had exclusive possession of its own room. As LHL did not have a contract with the individual guardians the UT disagreed with the VTE’s findings that the guardians were in occupation of Ludgate House on behalf of LHL [See - Ludgate House Ltd v Ricketts and London Borough of Southwark UKUT * (LC) [RA-*-*]]. Lord Justice Lewison at the Court of Appeal disagreed with the UT. LHL had contracted with VPS to protect Ludgate House, and the means of that was the property guardians vetted and installed by VPS to live within Ludgate House. “The presence of the guardians was an essential component of that which LHL had bargained for. That is why the licence provided that it was a serious breach if a guardian did not make the property their abode.” Drawing analogies with a lodger in a lodging house and a bank placing an ATM in a retail supermarket “…the purpose of the guardian on the one hand and VPS/LHL on the other were complimentary and mutually reinforcing. To borrow a phrase from Lord Carnworth in Cardtronics SC, the purpose of the guardians in living in the building was “to facilitate” VPS’ operation of providing property guardianship services to LHL. VPS needed the guardians to fulfil its obligation to provide property guardianship services to LHL; and the guardians knew (because the licence agreement told them) that that was so. They had gone through an induction programme to ensure that they understood their responsibilities. Both the recitals, and the terms on which they were permitted to live in Ludgate House, were entirely consistent with and supportive of that mutual purpose. Indeed, the agreement between them and VPS calls them “the Guardian” throughout. Labels like these are not chosen at random.” The Court of Appeal placed no importance on the provision of keys to individual rooms to guardians, comparing this to the situation with lodgers and Hotel guests. Quoting Blackburn J in Allan v Liverpool Overseers (*-*) LR * QB *, where the paramount control of the Landlord over a lodging house was confirmed. The sense that a guardian had exclusive use of their room was no different to the exclusive use a lodger has over their room. The UT had stated that the terms of the guardian’s licence were not inconsistent with residential use, but the Court of Appeal thought that was not the right question here. “The question was whether the terms of the licence were inconsistent with exclusive occupation by the guardians. As the lodger cases show, sole use is not necessarily the same as exclusive use. The terms of the licence proclaim several times that a guardian is not being granted exclusive occupation of any part of the building … If, as Blackburn J held, the test is whether a guardian would be entitled to maintain an action for trespass, it seems to me to be clear that the terms of the licence did not give them exclusive possession, which is the necessary foundation for an action in trespass.” The UT had been incorrect to disregard the guardians obligations to challenge intruders as normal for any residential occupier to protect their property and had overlooked the obligation to protect the whole property under the contract and not only those parts used as living accommodation. The Court of Appeal reaffirmed the position that occupation of premises by an employee or caretaker is not beneficial occupation by the employer, nor is it rateable occupation by the caretaker. But the UT should not have ignored the common or complimentary purpose of LHL in having the guardians occupy the rooms. The agreement between VPS and LHL was clear in that LHL had not given up possession of any part of Ludgate House and retained both possession and control, VPS was forbidden from occupying the property. There was no suggestion that this agreement was a sham. “The purpose for which Ludgate House was occupied (including the rooms used by the guardians) was a common purpose which was of direct benefit to LHL and/or VPS. It was a case in which LHL, and/or VPS retained at least contractual control, over the building to realise that benefit, precisely because neither had parted with possession (or indeed occupation) The question is not, therefore, one of “paramount occupation;” but of “general control” which is the decisive factor in establishing who is in rateable occupation of the building.” The Court of Appeal found the requirement for the guardians to move rooms at short notice, which had been exercised by VPS in two cases, to be a significant interference with the use of that room for living in. The contract between VPS and the guardians did not grant them exclusive possession of their individual rooms and could require them to move at short notice, therefore the UT had been wrong to conclude that the guardians were in rateable occupation of their individual rooms. [See - London Borough of Southwark-v-Ludgate [*] EWCA Civ *] *.*.* Determining General Control and Rateable Occupation From these recent cases it is clear that to identify who is in paramount control, one needs to determine whether the Host has parted with possession, and if not, the degree of control, (whether contractual, physical, or functional), that the Host retains over the putative hereditament. Although not determinative the presence of a Lease will be an important consideration. A lease by definition will give exclusive possession and will contain a covenant (whether express or implied) of quiet enjoyment. If it is considered that the Landlord has parted with possession, then the let out should be considered to be a separate unit of assessment. If the host has not parted with possession, then the degree of control that the host retains over the putative hereditament will need to be considered. Matters that may indicate that Host is in rateable occupation may include the rights of the Host to: Move location of the let out Control the way the let-out operator undertakes their business Control branding and marketing Rights of access over the let out *.* Property in Common Occupation - In England The Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act * implemented two policy commitments made in the November * Budget. The Act set out to reverse the ‘staircase tax’ a colloquial term given to the effects of the SC Judgement in Woolway v Mazars on which judgement was given in July *. The effect of Mazars [See *.*] was that properties that were contiguous, but where access from one to another was through a communal area, were required to be treated as separate and could not be valued as a single hereditament. The Act made an addition to the definition of hereditament has been made to S64(*) of the Local Government Finance Act *. The amendment defines an additional artificial type of hereditament, for property which is in the same occupation and contiguous to each other either vertically or laterally. This amendment effectively orders the Valuation Officer to assess together properties that would fall to be individual assessments following the UKSC decision in Mazars. This is ordered because the wording used in the legislative amendment is: “the hereditaments shall be treated as one hereditament.” The use of the word ‘shall’ in the above is significant. It is not a neutral word such as ‘may’, therefore there is no discretion on the part of the Valuation Officer. The contiguous properties must also be used by the common occupier for the same purpose. To be classed as contiguous, some part of a wall, fence, or other means of enclosure of one property must form part of a wall, fence or other means of enclosure of another property in the same occupation. Ceilings and floors, where directly overhead or below each other, will allow property to be considered as contiguous where the properties are in the same occupation. A property will still be considered contiguous if there is a service space between the floor and ceiling, control of which remains with the landlord. The Space Proviso The Valuation Officer appealed to the Upper Tribunal (Lands Chamber) against a decision of the VTE, which concerned the meaning of Space in 3ZD of the new provisions. The VTE decided that two offices separated by a fire corridor, could be merged to be shown as one hereditament in the list, based on the meaning of space within *(3ZD). The Deputy President of the Upper Tribunal, Martin Rodger heard the appeal of Roberts (VO) v Backhouse Jones Ltd. Mr. Rodger declared the last three lines of 3ZD should be known as the “space proviso”. Mr. Rodger in his decision at paragraphs *. and *. very helpfully explained the meaning of the space proviso: “*. In the context of rating occupation is important in defining the unit of assessment. On normal principles the fact that such a void or compartment in a wall or floor may not be in the occupation of the person occupying the rooms on either side, and may be used by the building owner to house conduits and service installations, would arguably be enough to justify the conclusion that premises so separated were not contiguous within the meaning of Section *(3ZD)(a) or (b). They are not enclosed by the same wall, but by two walls with a void between them; or the floor of one is not “directly” above the ceiling of the other, but is above a service void below which lies the ceiling. The clear purpose of the space proviso is to deal with that uncertain situation, and to confirm that the presence of such a space or void or gap does not prevent otherwise contiguous hereditaments from being treated as one. *. It is clear from the structure of the subsection that the space proviso is not intended to be an alternative to the conditions in paragraphs (a) or (b), but is provided to clarify or qualify their application. The direction that two spaces are “not prevented from being contiguous … merely because” they are separated by a space simply allows one difficulty to be overlooked in cases where the qualifying condition would otherwise be met. To be contiguous two hereditaments must therefore satisfy the requirements of either paragraph (a) or paragraph (b), but those requirements will not be prevented from being satisfied by the presence of a space between the hereditaments which is not in the same occupation. Once it is recognised that the requirement of separation by the same wall, or by a common floor and ceiling, remains an essential characteristic of contiguity, it becomes clear that the space to which the proviso refers is a space within the wall or ceiling, forming part of the same enclosing structure which surrounds both hereditaments. Mr. Rodger found that the fire corridor did not come within the meaning of the space proviso as described above. The Valuation Officer’s appeal was allowed and the properties which were removed from the list as a result of the VTE’s decision, were ordered to be reinstated. Contiguous Empty Property Previously occupied contiguous property will continue to be one assessment where it all becomes empty on the same day. If parts are vacated on separate days then individual assessments will apply.\ So if a tenant who formerly occupied floors * - * vacated each floor of a *-storey office block on different days the Landlord would not be eligible to request a single assessment for those floors. But if notice to quit had been given and they were vacated on the same day the valuation officer could assess together any that were previously contiguous. Proposals against * List Entries An amendment to the Non-domestic Rating (Alteration of Lists and Appeals) (England) Regulations * allowed relevant proposals to be made in respect of the * list between * December * and * December *, to merge or reconstitute assessments, where a ratepayer believed the provisions of S64 Local Government Finance Act *, applied to any period they were in occupation. *.* Property in Common Occupation - In Wales’ Between *^th^ March and *^st^ June *, the Welsh Government consulted on a proposal to make secondary legislation which would clarify the circumstances in which two or more units of property should be treated as one for non-domestic rating. reinstate the practice before the Mazars Supreme Court ruling whereby units of property that were in the same occupation and contiguous would be treated as a single hereditament. The Non-Domestic Rating (Property in Common Occupation) (Wales) Regulations * effectively replicate the sections (3ZA), (3ZB), (3ZC) and (3ZD) that were introduced to S.* Hereditaments of the LGFA * by the Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Act * other than that the provisions only come into force from *^st^ April * and so relate only to the * and subsequent rating lists. *.* Property in Common Occupation Appendices Some examples of the working of the rules have been prepared: Appendix 1a gives examples of the working of the rules in England and for Wales from *^st^ April * Appendix * gives working examples of the rules in Wales prior to *^st^ April *. * Appurtenant Rights attaching to the Hereditament and the effects of the Rights of Others Show * Advertising Rights and incorporeal hereditaments Show * The Corporate Veil Show * Ceasing to exist Show * Cross Boundary Properties Show * Cross Border Properties – England/ Wales Show * Plant & Machinery Show Print this page Is this page useful? 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So where in the above VOA evidence does it state what you are implying

So where is the caselaw to support what you are stateing that rebuts mazars

So provide caselae

Expand all above cases