[2000] EWLands RA_56_1999 (26 May 2000)	RA/56/1999
	
RATING - proposal made by person no longer in occupation - Non-Domestic Rating (Alterations and Appeals) Regulations 1993 - VO raising invalidity of proposal for first time in Lands Tribunal - held entitled to do so - ratepayer’s appeal therefore dismissed 	

LANDS TRIBUNAL ACT 1949

		
IN THE MATTER of an APPEAL against the DECISION of the
	CENTRAL LONDON VALUATION TRIBUNAL

BETWEEN	MAINSTREAM VENTURES LTD	Appellant

	and

	PETER ROBIN WOOLWAY 	Respondent
	(Valuation Officer)

	Re:	Office Premises
	3rd floor
	93 Buckingham Palace Road
	London SW1W ORP

	Before: The President

	Sitting at 48/49 Chancery Lane, London WC2A 1JR
	on Friday 19 May 2000

Mark Howell, director of Mainstream Ventures Ltd, for the appellant.
The respondent valuation officer in person.

DECISION ON A PRELIMINARY ISSUE

1.	In this appeal against the decision of the Central London Valuation Tribunal relating to office premises, 3rd floor, 93 Buckingham Palace Road, London SW1, the respondent valuation officer seeks to argue that the proposal giving rise to the appeal before the valuation tribunal was not validly made because the appellant was not entitled to make it.  I heard submissions on this preliminary issue from the valuation officer and from Mr Mark Howell, a director of the appellant company, Mainstream Ventures Ltd.  
2.	The hereditament was entered in the list at rateable value £39,000.  On 19 November 1998 a proposal to reduce the rateable value to £25,000 was made by Mainstream Ventures Ltd and the notice was signed by Mark Howell.  Under “Name of the occupier” the notice stated “Mainstream Ventures Ltd until September 1997”, and under “Capacity in which this proposal is made” “Occupier” was ticked.  At no stage until appeal to this Tribunal had been made was there any contention on the valuation officer’s part that the notice was invalid.  The valuation tribunal considered the appeal on its merits and in their decision of 23 August 1999 they confirmed the rateable value of £39,000.
3.	Documents were put before me by both parties, and I heard evidence from Mr Howell.  Mr Woolway said that an error had been made on his part.  An invalidity notice should have been served because it was clear on the face of the proposal that it was invalid since the proposer, Mainstream Ventures Ltd, were no longer in occupation at the time the proposal was made.  He submitted, however, that Regulation 7 of the Non-Domestic (Alteration of Lists and Appeals) Regulations 1993, which provides for the service of invalidity notices and to which I will refer later, was not the only route by which the validity of a proposal could be challenged, and indeed that para (11) of the regulation expressly enabled him now to take the point.  
4.	Mr Howell accepted that at the time the proposal was made Mainstream Ventures Ltd were no longer in occupation, but he submitted that it would now be unfair to allow the valuation officer to contend that the proposal was invalid.  He gave evidence that they had gone out of occupation on 13 November 1997 (and not in September 1997 as he had stated on the proposal form) having been allowed by the landlords to stay on after their lease had come to an end.  Before they went out of occupation they had instructed the surveyors Strattons to make a proposal on their behalf but the appeal was later withdrawn by Strattons without their agreement.  It appears from the documentation produced by the valuation officer that a proposal was indeed made on 10 February 1998 by Strattons on behalf of Mr R Mackenzie and Mainstream Ventures Ltd and Mr Woolway told me that the appeal was withdrawn on 28 July 1998.  
5.	In correspondence with the valuation officer Mr Howell had relied on two documents in support of his assertion that Strattons had been instructed to make a proposal while Mainstream Ventures Ltd were in occupation.  One was an authority for Strattons to make a proposal.  This referred to the hereditament and gave the name of the client as First Personal Finance Ltd and Mainstream Ventures Ltd.  It was signed by R Mackenzie on behalf of First Personal Finance Ltd and was dated 31 October 1997.  The second document was an acknowledgement by the valuation officer dated 13 November 1997 of a proposal from Strattons relating to 2nd floor, 91-95 Buckingham Palace Road.  In cross-examination Mr Howell said that he had not signed any documents with Strattons, although he had had meetings with them.  It was put to him that the records of the billing authority showed Mainstream Ventures Ltd’s occupation as having ceased on 29 September 1997, and Mr Howell said that they must have told them that they had left on that date.
6.	There is disagreement between the parties on when Mainstream Ventures Ltd went out of occupation and whether, and if so when, they instructed Strattons to make a proposal on their behalf.  There is no documentary or other evidence to support Mr Howell’s assertion that Mainstream Ventures Ltd continued in occupation until 13 November 1997.  I do not find his recollection on this point to be reliable.  The assertion appears first to have been made in Mr Howell’s reply dated 12 January 2000 to the valuation officer’s statement lodged in these proceedings in which he stated that the appellant had gone out of occupation on 29 September 1997.  I think it most likely that occupation ceased on this latter date, which is consistent with what was stated in the proposal and what was said to the billing authority.  There is no evidence to suggest that instructions to make a proposal had been given to Strattons before that date.  
7.	I make these findings of fact because it was part of Mr Howell’s case on fairness that he had given instructions that a proposal should be made before the company went out of occupation.  He made no submissions as to what, if any, significance these matters had as a matter of law.  In my judgment they have none.
8.	Section 55 of the Local Government Finance Act 1988 gave the Secretary of State for the Environment the power to make regulations about the alteration of rating lists, proposals and appeals.  Subsection (4) (as amended) provides that the regulations may include provision:
(a)	as to who (other than a valuation officer) may make a proposal for the alteration of a list with a view to its being accurately maintained,
(b)	as the manner and circumstances in which a proposal may be made, and the information to be included in a proposal,
(c)	as to the period within which a proposal must be made, 
(d)	as to the procedure for and subsequent to the making of, a proposal, 
(dd)	as to the circumstances within which and the conditions upon which a proposal may be withdrawn, and
(e)	requiring the valuation officer to inform other prescribed persons of the proposal in a prescribed manner.
9.	The Non-Domestic (Alterations of Lists and Appeals) Regulations 1993 were made under this power.  They have been amended by subsequent regulations.  Regulation 4A(1) sets out the grounds on which a proposal may be made; and para (2) provides that an interested person may make a proposal if he has reason to believe that any of the grounds set out in para (1) exist.  “Interested person” is defined by regulation 2(1) to mean the occupier, the owner and related companies of a company that is the occupier or owner.  As a matter of construction it is clear, in my view, that para (2) gives the right to make a proposal only to a person who is an interested person at the time the proposal is made.  Thus a person who was, but has ceased to be, the occupier does not have the power to make a proposal.  
10.	Regulation 4B specifies the periods during which proposals may be made, and regulation 5A requires that a proposal is to be made by notice in writing to the valuation officer and sets out what the notice must contain.  Under regulation 7(1), where the valuation officer is of the opinion that a proposal has not been validly made, he may within four weeks of its service on him serve notice, called an “invalidity notice”, on the proposer that he is of that opinion and stating his reasons for that opinion.  The valuation officer may withdraw a notice at any time (para (2)).  The proposer is permitted within four weeks of a notice that is not withdrawn to make a further proposal or to appeal to the valuation tribunal (para (3)).  Para (11) provides:
“Nothing done under this regulation shall be construed as preventing any party to an appeal under regulation 12 from contending for the purposes of that appeal that the proposal to which the appeal relates was not validly made”.
11.	The respondent submitted that para (11) expressly entitled him to contend that the notice was invalid because the proposer was not in occupation at the time of the proposal.  In its terms, however, the paragraph only applies where something has been done under the regulation.  Here nothing has been done, and the paragraph accordingly does not assist the respondent in the way he suggest.  The most I think that can be said is that the paragraph provides some indication that it is not the scheme of the provisions that regulation 7 should constitute a complete code for advancing a contention on invalidity, so as to make service of an invalidity notice a pre-requisite of advancing the contention.  Para (11) would, for instance, enable a valuation officer who had withdrawn an invalidity notice and who later acquired new information to suggest that the notice was invalid to argue the invalidity point in the valuation tribunal.  I can see no reason why a valuation officer who had not served an invalidity notice because he had no reason to suppose that the proposal was invalid should not later argue invalidity on the regulation 12 appeal if, by the time of the hearing, he had acquired information suggesting that the proposal was invalid.  
12.	In the present case, however, the respondent, having failed to serve an invalidity notice or to argue invalidity in the valuation tribunal, now seeks to take the invalidity point even though no new information has come to hand.  His case is that the proposal was on its face invalid because it disclosed that the proposer had no power to make the proposal.  He accepts that he could have served an invalidity notice and that he could have argued invalidity in the valuation tribunal.  Is there any reason why he should not now take the invalidity point?
13.	There may well be circumstances in which the doctrine of estoppel may prevent a valuation officer contending for the first time in an appeal to the Lands Tribunal that the proposal on which the appeal is founded is invalid.  Unless a valuation officer follows the invalidity notice procedure he may be at risk of a finding that the appeal has proceeded on the basis of a common assumption that the proposal is valid and that it would be unconscionable for him to argue at this particular stage that it is invalid.  I do not think, however, that an estoppel can arise where, as here, the invalidity consists of the absence of any power on the part of the proposer to make a proposal.  The provision as to who may make a proposal, creating as it does substantive statutory rights and duties, is not in my judgment capable of being overridden by the conduct of those who may have an interest in the proceedings that have been set in train by a proposal.
14.	I have some sympathy for Mr Howell.  He has been put to inconvenience and expense as a result of the valuation officer’s failure to take the invalidity point at an earlier stage, and the time of the valuation tribunal has been wasted.  The valuation officer’s contention must, however, succeed, and I determine the preliminary issue in his favour.  Although the consequences of a conclusion in this Tribunal that the proposal underlying the appeal was invalid are not easy to analyse juridically, I am satisfied that the proper course is for me to dismiss the appeal, and I do so.
15.	What I have said so far concludes my determination of the substantive issues in this case.  It will take effect as a decision when the question of costs is decided and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and Order 61 rule 1(1) of the Civil Procedure Rules will come into operation.  Although I will consider any submissions that the parties may wish to make, I am minded to make no order as to costs.  A letter relating to such submissions accompanies this decision.
				Dated: 26 May 2000

				(Signed) George Bartlett QC, President

ADDENDUM ON COSTS

16.		The respondent valuation officer says that he agrees that no order as to costs is made.  The appellant has submitted a schedule of costs which, he says, it would be unreasonable for him to bear because an assumed state of affairs persisted as a consequence of the valuation officer not taking the invalidity point earlier.  Certain of the items relate to the valuation tribunal hearing.  The power of the Lands Tribunal to award costs is limited to the costs of and incidental to the proceedings before it, so that no order can be made in relation to costs incurred in relation to the valuation tribunal hearing.  The other items relate to the costs of the appeal.  While, in the light of his failure to take the invalidity point earlier, there is obvious justification for not awarding the valuation officer his costs despite the fact that he was successful, there is in my view no reason why the appellant should have his costs for unsuccessfully resisting the respondent’s contentions on the preliminary issue.  I therefore make no order as to costs.

					DATED: 20 June 2000

					George Bartlett QC, President