In this section
CTM PN 1 details which properties constitute dwellings. CTM PN 2 gives general advice on composite properties including the approach to valuation. This practice note deals with individual types of properties, which are on the borderline between domestic and non-domestic property.
Where necessary advice on the rating aspect of borderline questions can be found in the Rating Manual. In particular:-
RM 4:2 Occupation and the Hereditament (including domestic property).
RM 4:9 Composite Hereditaments
2.1 Any property which satisfies the definition of dwelling contained in the LGFA 1992 or is a dwelling by virtue of The Council Tax (Chargeable Dwellings) Order 1992 (SI No 549) as amended is to be ascribed a band and shown in the Valuation List. S.3(2) of the Act provides,
"(2) Subject to the following provisions of this Section, a dwelling is any property which -
(a) by virtue of the definition of hereditament in Section 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force; and
(b) is not for the time being shown or required to be shown in a local or a central non-domestic Rating List in force at that time; and
(c) is not for the time being exempt from local non-domestic rating for the purposes of Part III of the Local Government Finance Act 1988 ("the 1988 Act");
and in applying paragraphs (b) and (c) above no account shall be taken of any rules as to Crown exemption."
2.2 Accordingly, unless a hereditament is non-domestic and is shown or required to be shown in the local or central Rating List or is exempt under Schedule 5 of the 1988 Act, it will, subject to the other provisions of Section 3, constitute a dwelling which is to have a band ascribed to it.
2.3 The "other" provisions of Section 3 are:
S.3(3) - which provides that the majority of composite hereditaments whilst shown in the non-domestic Rating List, are nevertheless dwellings (see CTM:PN 2).
S.3(4) - which provides that certain appurtenances such as garages, whilst defined in S.66 of the 1988 Act as domestic property, are not to be treated as dwellings where found in isolation (see CTM:PN 1).
and S.3(5) - which empowers the Secretary of State to provide by Order that properties which would otherwise be treated as single dwellings are to be treated as more than one, and properties that would otherwise be multiple dwellings can, at the Listing Officer's discretion, be treated as one dwelling (see CTM:PN 5 and CTM:PN 6).
2.4 Where a single composite hereditament is treated as more than one dwelling (ie disaggregation occurs) each entry in the Valuation List is to be endorsed with the letter 'C' to denote that it is part of a composite hereditament.
3.1 The Council Tax (Exempt Dwellings) Order 1992 (SI No 558) as amended by the Council Tax (Exempt Dwellings) (Amendment) Order 1993 SI 150 and the Council Tax (Exempt Dwellings) (Amendment) (England) Order 2000 SI 424 defines those dwellings which are exempt from liability to Council Tax. This does not, however, exclude them from being dwellings and they therefore require to be banded and shown in the Valuation List in the same manner as non-exempt dwellings.
3.2 Dwellings in the ownership of the Crown are also to be banded and shown in the List. Where a Crown dwelling is unoccupied, occupied by HM The Queen or HRH The Prince of Wales, or is owned by the Secretary of State for Defence and held for the purposes of armed forces accommodation, a contribution will be made in lieu of Council Tax, based upon the band which has been ascribed to it in the Valuation List.
3.3 Responsibility for valuation of most dwellings in the ownership of the Crown will fall on local Unit Offices, and in each Unit a referencer will receive security clearance to undertake inspection of sensitive properties.
The Industrial & Crown Valuation Team which is located within the Specialist Valuation Unit, can be contacted as a point of last resort if a local office has insufficient details to carry out an accurate banding of any Crown dwelling, and has insufficient security clearance to make an inspection.
The Crown Valuation Team is responsible for dealing with the vast majority of properties occupied by the Ministry of Defence, and all properties occupied by HM Prison Service, Royal Palaces occupied by Members of the Royal Family and other security sensitive Crown occupations.
4.1 Having regard to the definition of a dwelling (outlined in 2 above) it is necessary to consider for properties on the borderline the extent to which they comprise domestic property and, so far as they are domestic, their valuation banding for Council Tax.
4.1 Having regard to the definition of a dwelling (outlined in 2 above) it is necessary to consider for properties on the borderline the extent to which they comprise domestic property and, so far as they are domestic, their valuation banding for Council Tax.
4.2.1 Where a building within the curtilage of a dwelling, or a room(s) within a dwelling, is used exclusively for working at or from home, such accommodation will be treated as non-domestic for rating purposes .If the use of a room for work purposes is not exclusive, as often is the case, there are no physical alterations to the property to make it suitable for work purposes, and where a person working at home uses furniture and equipment of the kinds that are commonly to be found in domestic property, such use will in general constitute use for the purposes of living accommodation under section 66(1)(a) of the LGFA 1988. Rateability may arise if the accommodation is constructed or adapted so as to lose its domestic character or where equipment of a non domestic sort is used to a significant extent. Similarly, if employees or clients come to the premises, this will be outside the ambit of use for the purposes of living accommodation. The question will always be one of fact and degree in each case and no single factor will be determinate. Guidance on the meaning of “ living accommodation” was given by the President of the Lands Tribunal in Tully v Jorgensen ( VO ) 2003 RA 233 . This case concerned the use by the taxpayer of a former bedroom for the purpose of her full time employment.
4.2.3 That part of the property which continues to be used wholly as living accommodation will remain as domestic property, and the hereditament will be treated as a composite within section 64(9) of the LGFA 1988.
4.2.4 The attached appendices (PN8 : Appendix 1 and Appendix 2) give guidance on how to deal with home working for Council Tax and rating purposes. Reference should also be made to Rating Manual 4.2 Part B6 and 4.9.3.
There is a distinctive and slowly growing class of property that is purpose designed and built for live/work units. Such dwellings will normally have specific purpose finished areas set aside for workspace usually in the form of an office/studio. Where occupied as workspace, the dwelling will be a composite and an RV attributed to the ND space and the domestic element apportioned out of the whole value for banding.
Difficulties may arise where the division between ND and domestic is not clear eg in an open plan layout. Each situation must be judged on it own merits and advice sought from the Unit Technical Adviser.
Where identical units are used to differing degrees for ND purposes, then the RVs should be set according to ‘notionality’ as explained in RM Vol 4 section 9 para 4. This requires that the property should be valued "vacant and to let" having regard to its present physical state, but ignoring any distribution of domestic and non-domestic uses which are clearly out of conformity with the prevailing pattern for accommodation in that locality. Where there is a discernable pattern or expectation of occupation gleaned from identical or similar units in the locality, then this should be followed which will ensure consistency, and the RV and the band will match the typical occupation balance to be expected. Where there is no obvious pattern, VOs are likely to follow actual patterns of occupation to a greater extent. The notional approach to the valuation of composite property, which accords with the usual "vacant and to let" rule, will allow the resolution of disputes at the margins where, for example, a taxpayer seeks to argue a quite unreasonable occupation for domestic purposes simply to minimise the non-domestic element. Where, however, there is no non-domestic use at all, and all the space is actually used as living accommodation, (as opposed to parts being simply vacant) the property will not be composite, and the whole will be banded for council tax. If wholly domestic occupation of a live/work unit is being carried out in breach of planning permission, and the planners have an active enforcement policy, then that is a factor that may need to be reflected in a banding.
Further external information is available at www.liveworkhomes.co.uk which is an interesting site that gives details of new developments and other useful information in connection with this class of property.
4.3.1 A hall of residence is defined as an exempt dwelling in Class M of The Council Tax (Exempt Dwellings) Order 1992 (SI No 558). As detailed in para 3.1 above this does not affect the requirement to band and include such properties in the Valuation List.
4.3.2 Halls of residence will often form part of a larger composite hereditament (dwelling) eg a university or college. In the majority of instances each physically separate building or block will contain sufficient cooking and washing facilities to form a self-contained unit which should be disaggregated from the larger composite hereditament.
4.3.3 However each case is to be treated on its own merits in accordance with CTM:PN 5. Where a building or block is considered to be self-contained it is to be ascribed a single band, unless individual units of occupation within it can be regarded as being self-contained, in which case a band should be ascribed to each self-contained part. This might occur for instance where there are separate flats for the warden and/or other members of staff. Occasions where individual rooms are separately banded are likely to be rare and regard should be had to the contents of CTM:PN 6 when deciding whether discretion is to be exercised in order to attach one banding to what constitute several hereditaments and would otherwise comprise separate dwellings.
4.3.4 To be self-contained a building or part of a building has to be "constructed or adapted" for use as separate living accommodation. The test is not whether exceptionally it could be used as separate living accommodation but whether it was "constructed or adapted" for such use. A stair or part of a hall might comprise the usual common room, study bedrooms, bathrooms, together with a kitchen but in practice, as intended in the designing of the hall, the kitchen may only be used for preparing coffee and snacks with the students generally dining together in the hall's refectory. In this circumstance the part would not be accommodation 'constructed or adopted for use as separate living accommodation' and should not be separately banded. A stair or part of a hall intended to be self-catering and comprising the necessary facilities and layout to be self-contained would fall to be disaggregated and banded separately.
4.3.5 Where a hall of residence is a hereditament in its own right (eg where separated from the main campus) but does not comprise self-contained accommodation eg because it does not have its own cooking and dining facilities it will nevertheless fall to have a single band ascribed to it.
4.3.6 Halls of residence are often used for holiday and conference purposes, primarily during vacations. Where halls are used in this manner and remain composite throughout the year it is expected that a view be taken as to the extent of the non-domestic use of each hall during any typical year for NNDR purposes (and that no alteration is made to the Rating List merely on account of a change of use occurring within any hall). In such instances the band ascribed to any hall of residence must be consistent with the view which has been taken for NNDR purposes, ie the band should be derived from the following basis:-
Total beds x (365 Less no. of Non-Domestic Bed Nights)
Total beds x 365
of Hall (as part of
4.3.7 There will be some halls which are non-domestic or composite hereditaments for part of the year only, eg halls situated away from the main campus which are used wholly by students as living accommodation during term time, but which are wholly or partly used for holiday or conference purposes during vacations.
4.3.8 When the use of such halls changes it will be necessary to review the band ascribed to reflect this change. Where a hall which is wholly domestic property during term time becomes wholly non-domestic during a vacation it will be necessary to remove it from the Valuation List, and reinstate it when domestic use resumes.
4.3.9 Where a hall becomes a composite hereditament during vacations its band should be reviewed on the basis set out in para 4.7 and altered for the duration of the holiday/conference use before being restored to its original level when full domestic use resumes.
Most school boarding houses will form part of a larger hereditament (the school) which remains a composite hereditament throughout the year. Boarding houses which would have formed a hereditament in their own right for the purposes of the General Rate Act 1967 are expected to be relatively rare.
As in the case of halls of residence there will be instances where each separate boarding house will contain sufficient cooking and washing facilities to form a self-contained unit which should be disaggregated. However it is anticipated that in the majority of instances dining arrangements will be such that several blocks will fall to be banded together.
When banding any boarding house(s) which is not self-contained, any other property used by the boarders which constitutes domestic property, and is similarly not self-contained, is to be included in the band ascribed. For example if a school which takes only full time boarders has two boarding houses (one of which is self-contained), two common rooms, a dining room and a sports hall, it is likely that two bands would be ascribed:- one to the self-contained unit and one to the non self-contained unit, the two common rooms and the dining room. The sports hall would not fall to be reflected in any band as, whilst it might be used for recreational purposes, its main use would be one of sport and training, namely a non-domestic use. Similarly, if the common rooms and dining room were used by boarders and day pupils alike, and the use by the latter was anything other than de minimis, they would not constitute domestic property. (See paras 4.14 and 4.15 below).
In many larger composite hereditaments there will be property which is used both by persons residing within the hereditament (often as part of their living accommodation) and by persons residing elsewhere. For example, common rooms and dining halls will invariably be used by students residing on campus and by those living elsewhere.
Where the use of any property is shared and the use by persons residing elsewhere can be considered to be anything other than de minimis, the property will not constitute domestic property as defined by S.66 of the 1988 Act. By virtue of S.24(10) of the LGFA 1992 such a use will not be a domestic use and will not fall to be banded. However, when ascribing a band to any domestic use which is properly required to be valued, the valuation should reflect the existence or availability of such facilities (see CTM:PN 2).
Barracks owned by the Secretary of State for Defence and held for the purposes of armed forces accommodation are exempt under Class O of The Council Tax (Exempt Dwellings) Order 1992 (SI No 558). However, in common with other exempt dwellings, they must nevertheless be banded and shown in the Valuation List.
Barrack blocks will generally remain wholly domestic property throughout the year and, as is the case with school boarding houses, it is expected that the dining arrangements will be such that several will often fall to be banded together.
The accommodation in hospitals and convalescent homes to be treated as domestic is accommodation occupied by persons as their sole or main residence or, where persons have their sole or main residence elsewhere, is occupied for longer than a short period. There is no statutory definition of short periods but the view has been taken for this type of non-domestic use that it should be regarded as for 60 days or less.
The domestic accommodation will therefore include long stay wards in hospitals and parts of some convalescent homes.
Once the extent of the domestic accommodation within such a hereditament is determined it is necessary to consider to what extent it should be split up or disaggregated into separate dwellings. Each self-contained unit will comprise a separate dwelling. Given a central kitchen in the hospital the wards are likely to be incapable of disaggregation and therefore will together only require a single banding. Any "doctors," "nurses" or other permanent staff accommodation which satisfies the test of self-containment should be disaggregated and banded as a separate dwelling. (NB. "on-call" accommodation should be regarded as non-domestic).
Traditionally the hospice movement was intended solely to ease the passing of those who were in the last stages of terminal illness, so hospices for the terminally ill are normally treated as domestic property and shown in the valuation list as a single band where the property is a single self-contained unit. In recent years, however, hospice care has changed in nature so that the emphasis in adult units is to control the symptoms of the illness and send people home to lead a more normal life where possible. The process may be repeated a number of times during the course of the illness, and increasingly hospices are used for respite care. Such hospices are more in the nature of short stay accommodation within the meaning of section 66 (2) of the LGFA 1988, and therefore consideration must be given as to whether on the basis of the predominant circumstances, the property should be treated as non domestic.
Greater change has taken place with childrens’ hospices and the new sector of young adults because medicine has moved on to such an extent that seriously ill children more often are surviving into adulthood. Provision is usually respite care and in the nature of short stay .
Where there is a clear physical distinction made between parts of a hospice used for respite care and temporary visits, and that reserved for longer term stay where the hospice is effectively the sole or main residence of the occupants, it should be treated as a composite hereditament. Borderline cases should be referred to the CEO ( Local Taxation) Technical Adviser for advice.
Because of the changing nature of respite care each case must be dealt with on its own facts, and every effort made to find out the nature of the care provided and to whom before a final decision is made on whether the property is domestic or non domestic.
Such premises will often comprise wholly domestic property and will therefore be non-composite dwellings. Where any part of a property is self-contained it is to be disaggregated in accordance with CTM:PN 5.
Regulation 6(2)(h) of The Council Tax (Situation and Valuation of Dwellings) Regulations 1992 (SI No 550as amended) assumes that use is restricted to that of a private dwelling and therefore care is to be taken when using PD evidence with regard to old persons' homes. Payments for goodwill are to be ignored as they will reflect a business element which is inconsistent with the Regulation.
The term "care home" is defined in the Care Standards Act 2000 and covers a wide range of establishments all of which offer accommodation and care at any given time. However some homes are used primarily for the purposes of convalescence and treatment with the intention being that its occupants will eventually leave to live elsewhere, whilst others are more akin to old persons' homes with the main difference being that a greater element of care is available. Generally accommodation will be domestic except where it caters for occupants who have their main residence elsewhere and do not occupy for longer than a "short period". (see 4.14)
Hostels provided for the purposes of rehabilitation or refuge (eg hostels providing accommodation for substance abusers or victims of domestic violence) will often form the main or sole residence of the occupants. In such cases where a property will continue to be used by the occupants for the purposes of living accommodation it will fall into Council Tax and require banding. Conversely hostels occupied for short periods of time by persons who generally regard their main residence as being elsewhere will fall into rating (as such property is not treated as domestic under S.66(2) LGFA 1988). Typical examples will be YMCA and YWCA hostels or accommodation run by the Youth Hostels Association.
Hostels for homeless persons will usually constitute domestic property. Whilst such property is occupied by persons on a daily basis the property occupied is living accommodation. As the homeless, by definition, do not have a 'sole or main residence' elsewhere the criteria of S.66(2) LGFA 1988 for short term accommodation are not satisfied and such property is not excluded from being domestic.
Prisons are composite hereditaments comprising both domestic and non-domestic property. In addition to all staff living accommodation situated within the curtilage the domestic part will include the prison cells and any kitchens, canteens, games rooms or libraries which are used by the inmates. None of the living accommodation which is used by inmates will be self-contained and accordingly a single band should be ascribed - this will invariably be band "H".
Where staff accommodation is self-contained it is to be disaggregated and a separate band ascribed to each self-contained unit. When valuing staff accommodation its proximity to the non-domestic part is to be taken into account but only to the extent that it is seen to affect the value of the accommodation as part of the larger composite.
Staff accommodation situated on the periphery of a prison may constitute separate hereditaments under s.115 GRA 1967. They will therefore constitute dwellings in their own right and not form part of the composite prison.
Section 66(2A) of the LGFA 1988 provides that where there is an intention to provide short stay accommodation within the hereditament for more than 6 persons simultaneously then it shall be treated as non domestic. Even if the letting accommodation does not exceed the 6 person rule, it can still be rateable if part of the hereditament is occupied by the provider of the letting accommodation as his sole or main residence and the use of the non domestic part is not subsidiary to the domestic use as sole or main residence. Further guidance on bed and breakfast accommodation and section 66(2A) is given in Rating Manual Volume 5 Section 125.
Self catering accommodation will no longer be domestic if there is an intention for the whole building or self contained part to be available for letting commercially, as self catering accommodation, for short periods totalling 140 days or more. (Section 66(2B) of the LGFA 1988).
Difficulty arises in the interpretation of the phrase "available for letting". The VOA has taken this to mean for a period of the letting season, less any time reserved for the use of the owner, but the Lands Tribunal in Godfrey v Simm (VO) has decided that there shall be an intention to achieve 140 days of actual lettings during the year in question, before the property can be treated as non domestic.
Any problems arising from this decision must be referred to the Technical Adviser or CEO for advice on how to proceed, pending possible further litigation or changes to the legislation.
Where vacant living accommodation exists, a judgement has to be made on whether the next use of the accommodation is likely to be domestic or non-domestic under S66(5) LGFA 1988 which provides the rule that ‘Property not in use is domestic if it appears that when next in use it will be domestic’. Where no structural alterations have been made and all the facilities are still available, then mere vacancy is unlikely to alter the status of the living accommodation as being domestic.
As the domestic/non domestic test is a use test under S66, if the rooms are actually used for storage in connection with the shop or pub, then that is a non domestic use. However it is important to establish that there is a clear and real use for storage purposes as opposed to some slight user, or apparent ‘use’ being simply used as a device to avoid CT liability. A few boxes scattered around a flat would not amount to a bona fide non-domestic use of the living accommodation. It is in any case unlikely they will constitute a use of the whole living accommodation and as it is necessary for all the property comprising the hereditament to be used for non-domestic purposes (or likely when next in use to be non-domestic) then if part is vacant and unused but likely when next in use to be domestic e.g. the kitchen and bathroom then the hereditament will be composite and the notionality test (see below) will apply.
In a composite hereditament, if only part of the living accommodation is used for a non domestic purpose, this would need to be viewed from a 'notionality' perspective and requires the VO to stand in the shoes of the hypothetical tenant and seek to determine the reasonable expectation of the hypothetical tenant's occupation of the whole hereditament, taking into account other nearby similar units to establish a pattern. See Rating Manual Vol 4 Section 9 paras 4 and 5 for examples of the practical application of notionality in regard to living accommodation over shops.
There may be situations where there is no demand for living accommodation over a pub as evidenced perhaps by other pubs in a town centre being mainly in the nature of "lock ups" or perhaps where there is evidence that the former living accommodation over shops is mainly being used for storage purposes. So in these instances where some of the vacant rooms are used for non domestic purposes such as storage it may be reasonable to conclude that the next likely use of the other parts of the living accommodation will also be non-domestic.
As regards minor disrepair the statutory assumption will apply.
Where accommodation is provided for short periods to persons who have their sole or main residence elsewhere it is treated as non-domestic property (S.66(2) LGFA 1988). There is no statutory definition of short period but for rating the view has been taken that letting "for short periods" means letting for periods of a month or less, to different individuals on each occasion.
For some staff in these hereditaments, who have their main residence elsewhere, their period of residence will only be for a short period and the accommodation will therefore be non-domestic. For others, eg chalets situated on holiday camps which are occupied by resident entertainers, the period of residence may be for more than a "short period" and whilst these persons have their main residence elsewhere the accommodation will be domestic and fall to be banded.
Flats situated within large commercial buildings and used primarily for the purposes of accommodating individuals on business for short periods should be treated as non-domestic and no band should be ascribed to them. If the flat is used by one person as a pied a terre it should be banded.
4.16.1 Any hotel room or suite occupied for an indefinite period by a resident who uses it wholly for the purposes of living accommodation will constitute domestic property which should be valued for Council Tax. In the majority of cases this accommodation is unlikely to have sufficient cooking facilities so as to be self-contained for the purposes of disaggregation. Accordingly all units of such accommodation situated within a hotel are likely to be treated as forming the domestic element of a composite hereditament requiring a single band to be ascribed.
4.16.2 Where within the hotel there is living accommodation used by staff which similarly cannot be considered to be self-contained this will also fall to be reflected within the same band.
Living accommodation within a monastery or convent will form the domestic part of a larger composite hereditament. As detailed in CTM:PN 2 when attributing a band to the domestic use of any part of a composite hereditament a sale of the whole as one unit is to be assumed. Accordingly care is to be taken when banding any monastery or convent not merely to attach that band which would have been appropriate if the domestic property had been sold in isolation.
Whilst much of the living accommodation found within some monasteries and convents may be in demand for the purposes of conversion, offices are reminded that Regulation 6(2)(i) of The Council Tax (Situation and Valuation of Dwellings) Regulations 1992 (SI No 550 as amended) prevents such demand being reflected in the band ascribed.
4.18.1 Premises falling within this category of property will often comprise composite hereditaments by virtue of the fact that the main building itself comprises both domestic and non-domestic property, being used both as living accommodation and as a "showroom" for non-rateable chattels.
4.18.2 In those instances where the main building is used wholly for the purposes of living accommodation but situated within a larger hereditament, the remainder of which is non-domestic property, it will form the domestic part of a composite hereditament. An example of this would be a house occupied with substantial grounds which are open to the public all year round, subject to a charge being made.
4.18.3 When closed to the public any area used by the occupier will only become domestic property if it is used "wholly" for living accommodation. If such areas are not in use they will only constitute domestic property if, when next in use, it appears likely that they will be used wholly for the purposes of living accommodation. In most cases areas temporarily closed to the public will constitute non-domestic property to be opened to the public at a later date, part of which is used only occasionally as living accommodation. Accordingly they will not fall to be banded although their existence as part of the larger composite will be reflected in the band ascribed to the domestic part (see para 4.15 above).
4.18.4 Because of the continued existence of non-domestic property the majority of such homes will remain composite hereditaments throughout the year.
4.18.5 Where there is more than one self-contained unit of living accommodation within the hereditament they will require to be disaggregated and separately banded (CTM:PN 5).
4.19.1 A communal facility which is enjoyed solely by those persons occupying adjoining units of living accommodation will not generally require a band to be ascribed to it if it can be said to fall within the meaning of an 'appurtenance' belonging to or enjoyed with property used wholly for the purposes of living accommodation. Typically this will occur with such facilities as car parking areas, gardens, communal lounges etc at a block of flats or sheltered housing development. These facilities should be reflected in the market values of the individual units.
4.19.2 In each case it is a question of fact and degree whether such premises can be said to belong to or are enjoyed with the adjoining units of living accommodation. There needs to be some clear indication that the premises are provided and used as a facility for a specific property or group of properties so that the occupiers have the right (eg given in the leases), or would regard themselves as having some proprietary rights in the premises.
4.19.3 Where premises serve a whole estate or wider area these should be regarded as providing a community facility rather than something used in common by the occupiers of dwellings. Consequently they will lack the necessary element of "belonging to, or enjoyed with" any particular group of dwellings and will be non-domestic.
4.19.4 Cases have arisen with retirement 'villages' or residential accommodation provided by organisations such as the Sheiling Community for children and young adults suffering from mental illness or disability, where communal facilities are provided on a scale which goes beyond the normal meaning of 'appurtenance' (see RM4:2B). These may often include such facilities as a shop, bakery, classrooms, medical centre, restaurant, and swimming pool. It is not considered that such buildings are domestic property, and therefore separate entries should appear in the rating list, possibly as part of a composite hereditament depending as the facts in each case.
4.19.5 In those instances where a facility is used by both owners of adjoining living accommodation, as a right of occupation of their respective hereditaments, and individuals living elsewhere (provided that the latter use is not de minimis) it is to be treated as non-domestic property. This might occur with leisure facilities at a luxury development, for example. However the value of the right to use any facility is properly to be reflected in the band ascribed to the adjoining living accommodation as provided for by Regulation 6(1) of The Council Tax (Situation and Valuation of Dwellings) Regulations 1992 (SI No 550 as amended).
4.19.6 The value of facilities on an estate or a flat development (eg a community centre or swimming pool ) which would be separate hereditaments under the definition in S115(1) General Rate Act 1967 should not be reflected directly in the value of individual dwellings, but their presence in the locality and their likely availability for use should be taken into account.
4.19.7 Facilities which are appurtenant exclusively to individual dwellings but which would be separate hereditaments under the definition in S.115(1) General Rate Act 1967 (eg garages and reserved parking spaces) are not separate dwellings by virtue of S.3(4) LGFA 1992 and are not to be banded separately (see para 2.3 above). But their presence in the locality and the prospect of them being available for purchase should be taken into account in the value of the individual dwellings.
4.19.1 As indicated in CTM:PN 7 a caravan and its pitch and a boat and its mooring will together constitute a dwelling where the caravan or boat is the sole or main residence of an individual and the tests of rateable occupation are met. Accordingly all caravans and boats which satisfy these criteria are to be ascribed a band. When considering whether the tests of rateable occupation are met particular attention should be given to the transient nature of some boats and caravans before a band is ascribed including the caravan or boat.
Introduction: The question is a complex one, involving ‘borderline’ issues as to whether property is domestic or non-domestic, and defining the unit of occupation (the hereditament). The liability for council tax for migrant agricultural workers will depend on the type of accommodation they occupy, the nature and duration of their stay, their employment contract and their status, and sole or main residence issues. Living accommodation cannot be treated as being exempt under the non-domestic agricultural exemption provisions.
Defining the occupier:
It is unlikely that a seasonal worker will be the rateable occupier of a caravan despite living in it. Usually the farmer/owner will retain paramount control and be the rateable occupier and the pitch will form part of the owner’s hereditament.
Similarly if the seasonal workers stay in are chalets or permanent dwellings, then again, the nature and duration of their occupation will determine which list is applicable and who pays. If the owner of the units retains control then the ‘paramount occupier’ will be the employer/owner. For longer occupations control may still remain with the owner where the workers occupy accommodation as part of their employment conditions in relation to their work on the farm.
Rates or Council Tax ? - factors to be considered
● If a caravan and pitch is a sole or main residence, this defines it as domestic property under S66(3) LGFA 1988. This does not define the unit of assessment, however.
● If the owner is the ‘rateable occupier’ of caravans occupied by seasonal workers of farms they will be treated as domestic property and in a CT list if they are the sole or main residence of an individual. In this case multiple vans will be amalgamated into one band, as disaggregation does not apply to caravans and pitches as explained below.
● If the individual has a main dwelling elsewhere, however, which may be abroad, and is only occupying the caravan on a short term basis, the pitch will not be domestic and will be assessed as part of the owner’s hereditament
● If the caravan and pitch is within paramount control of the farm worker, not subject to conditional occupation, and is a sole or main residence occupied on a permanent basis it will be domestic. In that case the pitch and caravan would be banded as a separate dwelling, and the occupier will receive a separate bill. A cottage or chalet occupied as a sole residence will be similarly treated.
● Caravans that do not fulfil the criteria of the above paragraph, will be deemed to be in the occupation of the owner, and under the Non-Domestic Rating (Caravan Sites) Regulations SI 1990 No 673 the value of the pitches will be amalgamated and form a single non-domestic assessment. The rental value of the pitches (together with the caravans if permanently located on the farm) would form the basis of the assessment entered into the Rating List. Individual billing would not occur. It would be up to the owner to adjust the rent paid, if any, for the units by way of service charge, and individuals may contribute to the business overheads in that way.
● Domestic property to be excluded from the Rating List is also covered by sub sections 2, 2a, 2b, and 2c of the LGFA 1988. Essentially, property will not be domestic if it is wholly or mainly used in the course of a business for the provision of short stay accommodation, which is provided for individuals whose sole or main residence is elsewhere. As a guide, short stay in this context may be taken as 28 days, but the period has no statutory basis. Alternatively it will not be domestic if it is self contained, self catering accommodation available to let commercially for short periods totalling 140 days or more. This legislation normally applies to the letting of holiday cottages and flats, but must also be considered in the context of the farm lettings.
● Thus depending on the precise nature of the occupation, its length and terms, and the nature of the construction of the accommodation itself, the correct answer as to which list the units should appear for local taxation will vary according to the circumstances.
Following on from the above paragraphs, if the occupation of buildings used a living accommodation for longer than short periods, then they be domestic and entered into the Council Tax List. All self contained units will be treated as separate dwellings under the disaggregation provisions under the Council Tax (Chargeable Dwellings) Order 1993 articles 2 and 3.
It should also be noted, however, that in the case of caravans where the employer/owner is in occupation because of his master/servant relationship with his employees, and they are not short term residents, the caravans cannot be treated as separate dwellings, as they are not legally ‘buildings’. Only buildings are subject to the ‘disaggregation’ provisions. As from 1st April 1997 the definition of self contained unit was changed to mean “a building which has been constructed or adapted for use as separate living accommodation”.
The definition of a caravan is “any structure designed or adapted for human habitation which is capable of being moved from one place to another….”, subject to certain size limits, and it must not be in more than two main parts when fitted together. There is no reference to it having to have wheels. The full definition is in Part 1 Caravan Sites & Control of Development Act 1960 as amended by Caravan Sites Act 1968.
Summary & Conclusion:
Thus the accommodation of migrant workers could be entered in either the local CT or the rating list, according to the facts of each case as follows:-
● Where the owner/employer is in occupation of the whole, and the units are not sole or main residences, then there should be one non-domestic assessment, described as part exempt, if part of an agricultural unit.
● Where the accommodation can be viewed as wholly or mainly provision of short stay, for business purposes.
● Where lettings of permanent buildings are short term, not sole residences, and not self contained, e.g. lodging barn.
Council tax list:
● Where the caravans are sole or main residences of individuals, but the owner is in paramount control: one amalgamated band.
● Where the caravan is a sole or main residence, and the worker is in paramount control, separate bands.
● Where a building is a sole or main residence of an individual, regardless of paramount control: separate bands.
● Where the residential units are not self contained and in the occupation of the owner: one amalgamated band.
● Where buildings are in the occupation of the owner/employer, each self contained unit, having necessary standard facilities for self contained living, would be disaggregated: separate bands.
4.25.1 Showhouses are non-domestic property and do not require to be banded for Council Tax. See Rating Manual Vol 5 section 921
4.26.1 Any beach hut not shown or required to be shown in the non-domestic Rating List will require to be banded separately, unless it is an appurtenance to domestic property (S.66(1)(b) LGFA 1988 and S.3(4)(a) LGFA 1992). To be such an appurtenance it will need to fall within the curtilage of the dwelling in question.
4.26.2 A beach hut will not be "private storage premises used wholly or mainly for the storage of articles of domestic use "within section 66 (1)(d) of the LGFA 1988. (See unreported Lands Tribunal decision in Alford v Thompson (VO) 1998 and Rating Information Bulletin 236).
4.26.3 A chalet which is located close to the beach and is used for part of the year wholly for the purposes of living accommodation, shall be treated as domestic property under section 66(1)(a) unless it is let as holiday accommodation within section 66(2B).
A garden separated from a dwelling is non-domestic property. The case of Aylett v O’Hara VO (2001 RA 526) in the Upper Tribunal (Lands Chamber) concerned a river garden used for leisure purposes. The plot comprised a riverside plot accessible by footpath with a slipway a shed and a summerhouse. It was contended by the appellant ratepayer that the leisure garden, which he owned and occupied with others, was domestic property being living accommodation, under LGFA S66 para 1(b) but not a dwelling (and so should not appear in either list). This interpretation of S66 did not meet with the President’s view and it was clear that if it had been the case the property would have been treated as a dwelling. The written judgment confirmed the VO position that the leisure garden was non-domestic, it being not appurtenant to any dwelling, and the summer house used for storage of domestic items, tables chairs, microwave oven etc was simply ancillary to a non-domestic use. In the previous river garden case of Turner v Colman VO (1992) RA228 the VO had made a concession referring to storage of articles of domestic use, which clearly the member did not agree with. His comment on Turner clarified the correct view on the use of the summerhouse at para 10 “In my judgment premises used for storing articles of domestic nature do not fall within paragraph (d) where they are part of a hereditament that is otherwise non-domestic and where the storage use is ancillary to the non-domestic use”.
In Lewis v Christchurch (a High Court CT judgement) it was held that 341 beach huts each on their own plots were dwellings, and were wholly used for living accommodation. The facts in that case were distinguished, there being nothing in the subject facts which constitute the principle activities in the summerhouse as anything other than storage. He found that the summerhouse was part of a larger occupation ancillary to the open garden area.
In April 2013 Section 66 of the Local government Finance Act 1988 was further amended to address the borderline with regard to small scale energy production. A new paragraph 6(1)A and (1)B was added by The Non-Domestic Rating and Council Tax (Definition of Domestic Property and Dwelling) (England) Order 2013) as follows:
(1A) Property in England is also domestic if –
it is used wholly or mainly for the activity mentioned in subsection (1B), and
it is situated in or on property which is –
(i) used wholly for the purposes of living accommodation, or
(ii) a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property used wholly for the purposes of living accommodation.
(1B) That activity is the generation of electricity or the production of heat by a source of
energy or a technology mentioned in section 26(2) of the Climate Change and Sustainable Energy Act 2006(a), where –
the majority of the electricity or heat is generated or produced for use by such persons as may be in the living accommodation, or the plant or equipment used to generate the electricity or produce the heat has a capacity not exceeding 10 kilowatts or 45 kilowatts thermal, as the case may be.
Thus under S66 all small scale domestic generators, such as solar panels and domestic scale wind turbines under sub 10 Kilowatts or where most of the power is used in the home is domestic property.
Also S3 of the LGFA 1992 definition of a dwelling has been amended to the effect that the above applies to all equipment within the curtilage of a dwelling and anything not within the hereditament. this new category of domestic property is not to be treated as part of the dwelling, unless it is part of the hereditament itself.
Summary of guidance:-
1. Where domestic scale solar panels or other installations are subject to 3rd party leases of the roof or land they occupy, they will not form part of the dwelling because they have a separate occupier and therefore would be separate hereditaments.
2. However, as they are outside the dwelling/hereditament comprising the living accommodation they will not be subject to CT because they are not themselves dwellings. Like domestic garages separate from living accommodation, they are not required to be banded, neither are they subject to NDR because they are domestic.
4. Where the panels are owned by the householder and no 3rd parties are involved, they will form part of the dwelling, and so might constitute a potential ‘material increase’. However, their presence in practice will not affect the banding in current valuation lists, as there is no evidence that in the 1991 market in England the value of such equipment would have materially increased the freehold or leasehold value of properties.
5. For the above reasons CT bands should not be altered on account of the presence of any small scale energy generating equipment within the terms of the amended legislation.
4.27.1 Whilst the amendment to s.66 does not currently apply to Wales it is similarly considered very unlikely in the 2003 market in Wales the value of such equipment would have materially increased the freehold or leasehold value of properties. The following background information is, however, still relevant in Wales, but must be read with the foregoing principle in mind.
4.27.2 Micro power generation by small wind turbines and domestic type combined heat and power boilers, are likely to be installed with increasing frequency in the future. Energy conscious householders will be prepared to invest small to medium sums in such equipment in order to comply with the current body of opinion on ‘green’ issues, energy consciousness, and reducing CO2 in the environment.
4.27.3 As far as dwellings are concerned such adaptations are not entirely new, as solar heating panels on roofs are not uncommon, and some savings in the longer term to the investor will no doubt be made. The same principle will apply to investments in power generation equipment. In the long term, there will be probably a price advantage, though that will depend on the cost and efficiency of the particular unit. Many people will be put off by the initial capital investment necessary, or will not be convinced of the economic investment.
4.27.4 Dwellings: In the vast majority of cases the answer will be straightforward. Just in the same way as power plant is currently reflected at the moment, like oil and gas boilers, providing the plant is within the curtilage of the dwelling, serves the dwelling and ‘belongs to’ and is ‘enjoyed with’ the dwelling it falls to be valued as part of the dwelling (S 3(3)&(4) LGFA1992. To the extent that any new equipment installed causes a material increase in value, then it would only fall to be included in the banding value after a relevant transaction. It would be an ‘engineering or other alteration carried out in relation to the dwelling’ (see definition of material increase under S 24(10) LGFA1992. It is not considered, however, that there is sufficient evidence that such equipment would have materially affected property values in 2003.
4.27.5 Oversupply: Often micro-generators will be designed to have the potential to feed back into the grid any surplus electricity generated, which saves the cost and space dry cell storage batteries. However, provided the unit is primarily designed and engineered to supply the particular domestic property which it serves and to which it is appurtenant, any small potential for oversupply will be considered de minimis, and will not attract a non-domestic status. Most domestic type generators will not be supplying the dwelling’s full energy requirements, but merely as supplementary source. The existing instructions concerning de minimis non-domestic use are found in Rating Manual Volume 4 S2 and it is considered the principles outlined there are relevant in this context. Where a generator is no longer considered of domestic scale no longer designed primarily to serve the dwelling but is a mini power station in its own right, this should be obvious by the scale and nature and specification of the plant. If there is any doubt advice should be taken from Team leaders, Technical Advisers or allocated over to specialists in the Utilities Team for assessment.
4.27.6 The curtilage test: Where generation plant is within the natural curtilage of the dwelling, the plant will be treated as domestic. Where, however, the equipment is clearly well outside the curtilage of the domestic property, it will fall to be treated as non-domestic, and to the extent that its value is significant will appear in the local rating list. Sometimes the situation will occur where the turbine is on a composite dwelling such as a farm or smallholding, where the land and buildings outside the domestic curtilage are exempt as agricultural. Again a judgement will have to be made as to the size and scale of the generation plant, as it is possible that part of the power will supply the farm, and as such the value would fall to be apportioned between the dwelling and the non-exempt, non domestic element. Bearing in mind the low return on capital that such equipment may produce, if its primary purpose is supplying energy to a domestic dwelling, its NDR apportioned rental value may be small. It all depends on the size, scale and output of the generating equipment.
Companies exist which advertise private driveways that are available for letting out to commuters for daily parking of vehicles. These would normally be near railway stations. This demand reflects the parking restrictions around stations, creating such demand.
Whilst there could be circumstances where allowing a commuter to park on a driveway in exchange for a fee might be non-domestic, it is considered that, in general, such situations will come within de minimis parameters, in terms of establishing a non-domestic portion of a composite hereditament. Such parking could be compared with other comparatively minor non-domestic or business uses of dwellings such as the use of a bedroom to work at home or undertaking some shirt ironing for payment, that will not result in a home being given a rating assessment as well as a council tax band. It will however depend on the facts of the case and the degree of the non-domestic use.
Where a parking space separate from the home, e.g. on piece of land or a defined space associated with a block of flats, is let for parking then this may result in the parking space being assessed for rates.
This is a particularly difficult area and the following guidance is designed to assist caseworkers to understand the problem and the main principles to be applied.
The legislation applicable is primarily the application of the domestic test in LGFA S66(1)
66. Domestic property.
(1) Subject to subsections (2), (2B) and 2E below], property is domestic if—
(a) it is used wholly for the purposes of living accommodation
(b) it is a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property falling within paragraph (a) above, (emphasis added)
(c) it is private garage which either has a floor area of 25 square metres or less or is used wholly or mainly for the accommodation of a private motor vehicle, or
(d) it is private storage premises used wholly or mainly for the storage of articles of domestic use.
The question to be decided is whether the stable block can be considered appurtenant, belonging to or enjoyed with the dwelling.
6.1 Stables not agricultural: Unless used for agricultural purposes on adjoining land, the stabling of horses is not an agricultural use of buildings, and would naturally fall to be non domestic. Similarly a manège (exercise/training area) is not grazing land and hence not agricultural either. In contrast grazing land for horses does qualify as agricultural land. It is only where stables are in close proximity to, and occupied with living accommodation in a principal dwelling, that the question of appurtenance arises. If they are considered appurtenant to a dwelling, then they are domestic and should be reflected in the council tax band.
6.2 Leisure use of stables: In many cases stable blocks with manèges have previously been riding schools or livery stables occupied for business purposes and therefore clearly non-domestic. Because many of these hereditaments are rather marginal in their viability, or because when sold the new owners have a number of horses used for private leisure purposes, the business ceases as a commercial operation and it is therefore claimed that the stable must necessarily be domestic. This may or may not be the case, depending on the nature and location of the stables. In principle, however, is is important to bear in mind that the “living accommodation” within 1(a) does not have a restrictive meaning and it is possible for it to embrace leisure uses and hobby uses.
6.3 Appurtenant or not? The following are factors to be weighed up
(i) Defined curtilage: For a building to be considered appurtenant it must be within a defined curtilage that includes the living accommodation. Thus where the house and stable block can be reasonably considered as being within the natural garden or yard area, or ‘normal’ domestic curtilage, otherwise reflecting domestic type use, then it may be considered appurtenant. It is impossible to define the degree of closeness, and each case will have to be decided on its own merits according to the relationship and layout of the buildings. Where the stable block together with any manège becomes domestic, either a new hereditament will have been defined or if previously composite, there will have been an increase in the domestic use and the dwelling band should be revised accordingly.
This curtilege test is considered to be the main test.
Relevant factors will include, separate vehicular access, direct access to garden/curtilage, distance from main living accommodation, or whether the buildings were constructed together originally with the dwelling and the degree of historic attachment. Separately metered services may be a relevant factor but might simply be an historic legacy from a previous occupation.
If the stable block is in a paddock outside the domestic curtilege and thus remote from the house, it will not be considered appurtenant. Any grazing land separating the house from the stable will be indication that it is not within the curtilage. Grazing land itself will qualify for non-domestic exemption under Sch. 5 (2)(1)(a) LGFA “land used as arable, meadow or pasture ground only”.
(ii) Size and scale - is it ancillary? Where the scale of the stabling is out of all proportion to the size and character of the living accommodation, this would weigh against appurtenance, e.g. a mobile home with 20 stables would suggest the home is appurtenant to the stables rather than vice versa. There is no hard and fast rule in this area arising from Tribunal decisions.
(iii) Close physical relationship: The appurtenance must be close to the principal property. There must be a close connection between the occupation of the house and stables for it to be considered “belonging to or enjoyed with”. Any livery use or letting of stables to others, which is not de minimis, would weigh heavily against appurtenance.
(iv) Passing in a conveyance: Related to all of the above is the proposition that has come out of case law that an appurtenance must have been capable of passing in a conveyance (in a pre registered title world pre 1925) together with the principal property without further words of identification or express mention. This test is difficult for a caseworker rather that a conveyancer to judge in isolation, but is really a natural conclusion to the application of all of the above principles. If a building is clearly remote then it would need to have separate mention to clarify its status, and would not be appurtenant
6.4 Conclusion: It is acknowledged that no two situations are identical, and each case must be judged on its own merits weighing up the factors for and against. This can be a grey area, but the caseworker/team leader should decide, with advice from the Technical Advisers as necessary, the appropriate action in each case.
7.1 In times of economic downturn, vacant non-domestic buildings of all kinds pose a security risk for owners who may be waiting for the economy to improve or for a redevelopment opportunity at some future date. A modern trend is for agent companies to provide ‘property guardians’ by placing multiple ‘caretakers’ in the buildings which may well form their sole or main residences. The argument is that by having a building domestically occupied, usually by multiple licensees after basic domestic adaptations have taken place, will help to reduce vandalism, prevent squatting and reduce costs of traditional security and even generate a small income for the owner. Occupiers will probably be on short term contracts, but may well not have residences elsewhere, and hence proposals will seek domestic status.
7.2 The property may become used as living accommodation after basic conversion works and installation of wcs showers and kitchens etc. Under S66(1) of LGFA 1988 property is domestic if it is used as living accommodation, so there is no reason why such a scheme should not succeed in reducing tax liability by getting a property banded as a dwelling or dwellings. It is likely there will be growing numbers of proposals to bring dwellings into the list in the above circumstances.
7.3 Clearly each building will be different, but general patterns will emerge as to residential occupation. Inspections must be made to determine:
• The number of hereditaments and their status as domestic, non-domestic or composite. If areas within a building are actually used for the purposes of living accommodation, then they should be treated as domestic property.
• The number of dwellings (this may not be the same thing as the number of hereditaments)
• Whether self contained units exist within parts of the building.
• The exact nature and duration of the occupiers – it could be a hostel type situation
• Whether the whole building is wholly or partly used as living accommodation, there be parts not used as living accommodation, but merely ‘thrown in’ with small areas that are, for example, two offices used domestically and a large open plan office said to be recreation space. There should be definite evidence of actual residential use before space is re-designated as domestic property.
• The extent to which parts not used will remain non-domestic or whether a composite exists.
7.4 Any difficulties or advice should be directed in the first instance to Technical Advisers.
8.1 Due to the different ways in which many of the properties mentioned in Section 4 above are used it is not possible to address specifically how to treat them for Council Tax in every instance.
8.2 Listing Officers will encounter situations where further clarification is required. Where such instances occur offices should submit details for advice to the Technical Adviser for the Unit.