In this section
1.1 Since 1 April 1990 and the compilation of Rating Lists under the provisions contained in the Local Government Finance Act 1988 [LGFA 1988], rating has been a tax on non-domestic property. Domestic property not in rating may require banding for Council Tax (see Council Tax Manual PN 1 and 8).
1.2 The LGFA 1988 retained the pre-1990 definition of hereditament (s.64(1)), but also provided in s.64(8) that a hereditament is non-domestic if either:
- “it consists entirely of property which is not domestic,”
- “it is a composite hereditament.”
1.3 Composite hereditaments are those comprising both domestic and non-domestic parts and are defined in s.64(9) in the following way:
“(9) A hereditament is composite if part only of it consists of domestic property.”
2.1 The definition of “Domestic Property” in s.66 LGFA 1988 has been amended by a number of statutory instruments.
It provides a basic definition in S.66(1) and then gives special rules for:
- Caravans - s.66(3)
- Moorings - s.66(4)
- Hotels - s.66(2A)
- Short stay accommodation - s.66(2B & 2C)
- Timeshares - s.66(2E)
2.2 The basic definition of “Domestic Property” is provided in s.66(1):
“Subject to subsections (2) and (2B) below. Property is domestic if:
- it is used wholly for the purposes of living accommodation,
- it is a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property falling within paragraph (a) above,
- it is a 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
- it is private storage premises used wholly or mainly for the storage of articles of domestic use."
2.3 "If "
The use of the conjunction “if ” at the beginning of s.66(1) indicates that in order for property to be 'domestic', one of the four conditions (a) to (d) must be satisfied and that the subsection is exhaustive in meaning - see Turner -v- Coleman (VO) (1992 RA 228).
2.4 The meaning of “Living Accommodation”
In Tully -v- Jorgensen (VO) (2003 RA 233), a case concerning the rateability of a room in a house used for office work, the President of the Lands said (at paragraph 17):
“The purposes of living accommodation are plainly not confined to the satisfaction of the basic bodily needs of the persons residing in the property. Recreation and leisure facilities, for instance, are provided as part of the living accommodation. If there is a separate room for such a purpose, a television room or a billiard room for instance, the house does not cease on that account to be used wholly for the purposes of living accommodation.”
2.5 Again in Lewis -v- Christchurch Borough Council (1996 RA 229), a case concerning beach huts and an appeal by the Listing Officer as to whether they were correctly assessed to Council Tax, Jowatt J. stated:
“I note that the definition of domestic does not require that a hereditament is used for all the purposes which might be said to be the purposes of living accommodation. On the facts as found by the tribunal these beach huts were domestic since they were used wholly for the purposes of living accommodation. There are certainly in some of the beach huts bunk beds, but it does not follow that in order to be used for living accommodation a property has to be slept in. There are many other aspects of living than sleeping. The definition does not require that the property fulfils all the purposes which living accommodation might be called upon to meet.” …
2.6 “Wholly” - Living Accommodation
To be domestic, property has to be used wholly for the purposes of living accommodation. In this context, “property” means the whole or any part of a property, eg a room or part of a room. To be “domestic”, that part has to be used “wholly” for the purposes of living accommodation. A part which has a mixed use will not therefore be wholly domestic and will, in consequence, be non-domestic. This is consistent with the approach taken by Judge Marder in Evans -v- Suffolk County Council (1997 RA 120, at page 130):
“I agree further with Counsel for the Valuation Officer‘s point that since all the property is used to a material extent for the provision of welfare services including such things as training and rehabilitation, the development of social skills, and a degree of nursing care, the property cannot be domestic and must therefore be non-domestic.”
2.7 The definition requires property to be “used” as living accommodation. The test is one of use rather than character or design. A part (or whole) of a property will be domestic if it is used wholly for the purposes of living accommodation notwithstanding it was designed or built for a non-domestic use, eg a shop used as a house. “Property” can include more than one hereditament (see Head VO -v- LB of Tower Hamlets (2005 RA 177).
2.8 Composite Hereditaments
A hereditament is composite when it is comprised of both:
domestic property and
other property, which is non-domestic.
First, it is necessary to identify space which qualifies under the provisions set out in s.66 LGFA, for example, wholly used for the purposes of living accommodation in s66(1)(a).
When distinguishing between domestic and non-domestic usage, a simple spatial test should be applied. The qualification here is a purely physical one.
Thus those parts of a property that are occupied for a "domestic" use [as defined in s.66] should to be regarded as "domestic property", whereas all other uses [ie those that are not included in the s.66 definition of "domestic property"] should be taken as being "non-domestic".
Care should be taken when valuing composite hereditaments because once identified as “composite”, paragraph 2(1A) of Schedule 6 to LGFA 1988 requires the distinction to be drawn between domestic and non-domestic use (as opposed to domestic and non-domestic property). In arriving at the value reasonably attributable to the non-domestic use of property, it is necessary for the purposes of valuation, to reflect the non-domestic use of any property within the hereditament.
When considering the value of the non-domestic use of any property within the hereditament, regard should be had to the overall purpose for which the hereditament is used and this value should not be reduced on account of any incidental domestic activities. Thus, where simultaneous domestic and non-domestic uses within the hereditament contribute to the common purpose for which it is being occupied (eg a lavatory or kitchen used with both a shop and a flat in one occupation), the use of the same space for non-domestic and domestic purposes should be reflected in both the rateable value and charge band of the composite hereditament/dwelling.
The definition of "domestic property" in s.66, or the associated 'spatial test', have no bearing on the valuation of a composite hereditament.
2.9 The Charge Band of the “domestic property” which forms part of a composite hereditament will be arrived at in accordance with Regulation 7 of The Council Tax (Situation and Valuation of Dwellings) Regulations 1992 SI 550 1992 and the principles approved by the Court of Appeal in Atkinson v. Lord (LO) CA (1997 RA 413) - see CT Manual Practice Note 2 para. 6.
3.1 Although the terms “private garage” and “private storage premises” are not specifically defined in s.66 LGFA 88, it is clear from the wording used that some statutory requirements need to be satisfied in each instance.
Private Garages - s.66(1)(c)
3.2 The definition of a “private garage” in s.66(1)(c) is as follows:
“(c) it is a 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 ...”
Thus there are two ‘limbs’ within this definition. Either the private garage has:
(i) a floor area of 25 square metres or less (the first limb)
Or, if the floor area exceeds 25 square metres, it is:
(ii) used wholly or mainly for the accommodation of a private motor vehicle (the second limb).
3.3 Hence the tests that need to be satisfied for each ‘limb’ are as follows:
For the ‘first limb’:
Can the property be regarded as a ‘private garage’?
Is the floor area less than 25 m2 ?
In the alternative -
For the ‘second limb’:
Can the property be regarded as a “private garage”?
Does the floor area exceed 25 m2 ?
It is “used wholly or mainly for ... “ [ ... the accommodation of a private motor vehicle]?
Is a “private motor vehicle” accommodated therein?
3.4 "Private Garage"
The word “private” in the definition should be read as distinguishing the subject matter from a garage used for commercial or business purposes.
However, there is no definitive answer as to what a “private garage” should look like. Garages come with a variety of different characteristics, including all shapes and sizes, this can lead all too easily to the creation of the false proposition that ‘as this building is used for the accommodation of a private motor vehicle, it is therefore a private garage and accordingly is exempt under LGFA 1988 Section 66(1)(c)’. This proposition should not be accepted and cannot be correct.
The proposition is impermissible because it attempts to substitute a single test for the various tests implicit in s.66(1) and explained in paragraph 3.3 (above).
3.6 The preferred view is that, if on looking at the property one cannot come to the conclusion to describe the building as a ‘garage’ in the ordinary sense of the word, then it cannot be a “private garage” within the meaning of s.66(1)(c). This view is fully in accordance with the approach favoured by Atkinson J in Barnet & Block -v- National Parcels Insurance Company Ltd (1942 1 All ER221). Having reviewed the definitions in leading dictionaries, the learned Judge stated that he was inclined to think that the ordinary man in the street does not regard a garage as denoting some sort of a building; how far he would go the learned judge did not know. He applied the test suggested by Counsel for the insured, who said:
"... a garage is a place where one can get reasonable protection and shelter for a car."
3.7 VO's must be satisfied that, when looking at the property, it can be properly described as a 'garage' - and if not satisfied on that point, then it should be found that the property is not a 'private garage' within the meaning of the provision. In cases of difficulty, initial advice should be sought from the Technical Adviser, who will consult with CEO Local Taxation in appropriate cases.
3.8 The First Limb - "25m2 or less"
Providing its area is 25m2 or less, a private garage will qualify as domestic property under the first limb, whatever the type of vehicle it houses.
The Second Limb - premises over 25m2 - "Used wholly or mainly"
3.9 Once the over 25m2 size requirement is satisfied, the “wholly or mainly” test should be interpreted in a spatial context. It is a question of fact as to whether a “private garage” is used “wholly” for the qualifying purpose. The word “mainly” should be interpreted as ‘for the most part’. However, that is not to say that a “private garage” capable of housing 20 cars, but used to house just 3, with the remaining space entirely un-utilised, would not pass the “wholly or mainly” test. However, it is necessary in these circumstances to consider the main purpose for which the premises are being used and whether the premises are actually in use as a ‘Private Garage’ as opposed to avoiding vacancy. See RM2 sect 8.
It should be noted that in Andrews (VO) -v- Lumb (1993 RA 124), the LT President, HH Judge Marder QC, dismissed the ratepayer's claim under s.66(1)(c) because the accommodation of a bus was no more than incidental to the main use of the premises, which were also used for the storage of a collection of transport memorabilia.
In any case of doubt, the matter should be referred to the Technical Adviser.
3.10 "The accommodation of a private motor vehicle"
In this context, the word “private” should be read as contrasting with 'commercial'. However, the expression "a private motor vehicle", should not be treated as being anything more than the sum of its parts, so that something which is ‘private’ (in the normal sense), and which is a ‘vehicle’, which is powered by a ‘motor’, is to be viewed as a "private motor vehicle" for the purposes of this legislation.
It follows, therefore, that where the garage houses an obviously commercial vehicle, such as a taxi, van or lorry, it should be treated as non-domestic and rated.
Moreover, the words "a private motor vehicle” can be taken to mean the plural as well as in the singular. Indeed, the reference to a garage with an area of 25m2 (which area is large enough to house two cars) would suggest that the legislation was never intended to apply to just a single vehicle.
3.11 The expression "a private motor vehicle" needs to be construed within the wider provisions of s.66 LGFA 1988, the purpose of which is to indicate what property shall be treated as "Domestic Property" and what property shall not. The word ‘domestic’ is derived from the Latin word ‘domus’, which means ‘home’, and this needs to be borne in mind when interpreting this part of the legislation. Hence obvious examples that would not qualify as “private motor vehicles” are boats (generally housed in boathouses); aeroplanes, helicopters or micro-light aircraft (all of which are accommodated in hangars) and military armoured vehicles. Also, vehicles, which are hired, out or used for photographic and film work will not meet these provisions.
3.12 Additionally, it is considered that garages which operate as ‘workshops’ and undertake a large amount of repair work, overhaul and maintenance would not be “used wholly or mainly for the accommodation of a private motor vehicle”. This is a factor that should be carefully considered when dealing with premises used to house contemporary and classic car collections. Similarly, a view needs to be taken on whether the main purpose of the premises is for the accommodation of a contemporary and classic car collection, rather than a “private motor vehicle” associated with the domestic use of the associated the living accommodation. In many cases the latter use will be incidental to the former. In cases of difficulty, the Technical Adviser should be consulted.
Again, it follows that where a building comprising a garage exceeding 25 m2 is being used for some purpose other than for garaging a private motor vehicle, for example, as a workshop, for paint spraying or as a commercial store, it should be treated as non-domestic and rated.
3.13 Where a ‘private garage’ is situated within the curtilage of a non-domestic hereditament, the hereditament should be treated as composite.
3.14 "Private Storage Premises" - s.66(1)(d)
The essential tests to be met are:
i) Whether or not the building can be regarded as 'private storage premises'
ii) Whether it is “used wholly or mainly...” [... for the accommodation of articles of domestic use]
iii) Whether articles of domestic use are accommodated within it.
3.15 What “private storage premises” comprise is not defined in LGFA 1988. The word "private" in the definition should be read as distinguishing the subject matter from storage premises used for commercial or business purposes. In s.19(6) General Rate Act 1967, "private storage premises" were defined as "a hereditament which is used wholly in connection with a dwelling house or dwelling houses and wholly or mainly for the storage of articles of domestic use (including bicycles and similar vehicles) belonging to persons residing there ". The wording of the provision was revised and amended in s.66(1)(d), with the notable omission of the words “bicycles and similar vehicles”, but the strong link with the accommodation of articles used wholly or mainly with the actual living accommodation remains.
3.16 In so far as a building is used as “private storage premises”, it has to be used “wholly or mainly” for the storage of articles of domestic use in connection with a dwelling house (ie living accommodation). The criteria in relation to the “wholly or mainly” test is similar to that applied to premises used to accommodate a private motor vehicle - see paragraph 3.9 above.
3.17 In Alford -v- Thompson (VO) (unreported), a case concerning a beach hut (Beach Hut 4, Hordle Cliff, Lymington, Hampshire), the LT Member, Mr P H Clarke FRICS, found as a matter of fact that swim-wear, deck chairs, cutlery, etc were not articles of domestic use, but articles of recreational use in connection with the enjoyment of the beach. Moreover, the beach hut was a sui generis use. Its use in this case had been agreed as 'private', but these were not “private storage premises”, because the words "wholly or mainly" connoted storage for its own sake and did not include storage as an adjunct of the recreational use of the beach hut in connection with the beach.
The LT Member concluded that the crucial part of s.66(1)(d) was that, in so far as the beach hut was used for storage, it would have had to be used “wholly or mainly for the storage of articles of domestic use”. The evidence showed that any articles stored in the beach hut were 'wholly or mainly' for use in connection with the enjoyment of the recreational use of the beach hut and the beach.
3.18 In deciding whether any articles stored in a “private storage premises” are “articles of domestic use” it should be again noted that the word ’domestic’ is derived from the Latin word ‘domus’, which means ‘home’.
3.19 In Martin & Others –v- Hewitt (VO) [2003 RA 275], the President of the Lands Tribunal, Mr George Bartlett QC, provided this assistance at para 26 on page 286:
“I have no difficulty in accepting that use of a house for the recreational purposes of the occupier is likely to fall within the concept of the use of the house as living accommodation. Furthermore the storage of personal articles in the house would not prevent the storerooms from constituting part of the living accommodation. In consequence the storage elsewhere of things that could be used for recreation at the house would, in my judgment, be the storage of articles of domestic use. It also seems to me that in general the storage at the house of articles used for recreation away from the house would be within the concept. That would not be, however, because they were themselves articles of domestic use but because the storage of them as a normal incident to the use of the house as domestic premises would not deprive the house of its nature as living accommodation under paragraph (a), while their storage in an outhouse would not mean that the outhouse was not enjoyed with the house itself under paragraph (b). I do, however, have difficulty in seeing that the storage in premises quite separate from the house of things to be used for recreation away from the house could constitute the storage of articles of domestic use. It is possible that the different wording of the legislation in Scotland justifies a wider meaning being given to “articles of domestic use” than in section 66(1)(d), but I doubt whether this is the case. I do not, however, feel constrained to apply the dicta in Walker v Lothian on which Mr Scrafton relies. In my judgment the boats in the boathouses in the present cases, as articles stored for use on the lake and not in or about the dwellinghouses, are not articles of domestic use, and paragraph (d) is accordingly not satisfied ……”
3.20 Comparison with Scottish Rating Law
It should be noted that regulation 3(1)(b) of the Abolition of Domestic Rates (Domestic and Part Residential Subjects) (Scotland) Regulations 1987 differs from the provisions contained in s.66 in two crucial respects.
Firstly, it requires “private storage premises” to be ancillary to and used wholly in connection with a dwelling.
Secondly, by way of illustration, the definition includes the phrase, "cycles and other similar vehicles" - see paragraph 3.15 above.
Therefore it would be incorrect to attempt to rely on Scottish Rating Law, and the cases decided under it (for example Walker -v- Lothian Assessor [1990 RA 283] and Hamilton -v- Lothian Regional Assessor [1993 RA 133]) when trying to decide what are “private storage premises” within the provisions of s.66(1)(d). As explained in paragraph 3.19 (above), the President of the Lands Tribunal did not apply the dicta in Walker -v- Lothian Assessor when deciding the Martin case.
When considering whether a building is “domestic property” in accordance with s.66(1)(b) LGFA 1988, two tests must be fulfilled:
It must be "belonging to or enjoyed with” property which ”is used wholly for the purposes of living accommodation".
The phrase “belonging to or enjoyed with” is explained in paragraph 5 below.
It should be noted that the phrase “living accommodation” does not have a restrictive meaning and should be taken in a broad context to encompass leisure and hobby uses. Moreover, property can be used for the purposes of living accommodation without being a dwelling - see Section 2 above.
The premises must be "a yard, garden, outhouse or other appurtenance".
A “yard” is not defined in the legislation. However, the Concise Oxford Dictionary defines a “yard” as “Piece of enclosed ground, especially one surrounded by or attached to building(s) or used for some manufacturing or other purpose; garden of house”. In this context the term ’stable yard‘ may spring to mind which, curiously, is not defined in the Dictionary. However, a “yard” must have the necessary concept of enclosure - of being surrounded by, or attached to, buildings and this is not always present with ‘stable yards’ and other areas. In any event, a qualifying yard would require to be within the curtilage of the living accommodation. See dicta of Upjohn L J in Clymo (VO) -v- Shell-Mex and BP Limited [CA (1963) 3 R&VR 471], at page 473.
Again, a “garden” is not defined in the legislation and should be given its ordinary meaning, “piece of ground devoted to growing flowers, fruit, or vegetables”. In relation to ‘gardens’ which open to the public where access to the mansion, house or other associated living accommodation is restricted, the approach set out in RM Vol 5 Section 1085 Appendix 1 “Rateability” should be followed.
An "outhouse" is not defined in the legislation. However, it is considered that the main characteristics are that it is an outbuilding or outside building, adjoining a dwelling house, or within the curtilage of the domestic property and therefore is "belonging to or enjoyed with" that living accommodation. See Cadogan and Another -v- McGirk [CA 1996 EG 175].
The Concise Oxford Dictionary defines “outhouse” as a “house or building or shed belonging to main house and built near or against it; outdoor lavatory”. This implies subject matter which is ancillary to domestic property and therefore has a domestic purpose. An outhouse must lie within the curtilage of the dwelling house and have a very close affinity with it - something connected with the domestic use of the living accommodation, eg a coal shed, cycle shed, garden store. In Martin & Others -v- Hewitt (VO) [2003 RA 275], at paragraph 10 on page 279, the President of the Lands Tribunal observed that an “outhouse” must have a “close physical relationship to the dwelling in question. But, whether an outhouse or not, it would still have to be an appurtenance to fall within the provision.”
See also paragraph 4.5 et seq, below.
4.5 “Other Appurtenance”
It is important to note that the statutory wording in s.66(1)(b) is not ‘or appurtenance’ but "or other appurtenance". The effect of the word "other" is to import the ejusdem generis rule - so that in considering whether premises can be considered to be an "other appurtenance", it is not sufficient simply to consider the meaning of "appurtenance". It is necessary also, to consider the meaning of "yard", "garden" and "outhouse" and the genus (the family likeness, as it were) that they create.
4.6 Hence, in order to come within s.66(1)(b), premises that cannot be characterised, as a “yard, garden or outhouse” must be both:
an ‘appurtenance’ in the strict sense of the word – the Concise Oxford Dictionary definition is “belonging, appendage, accessory”. But note also the more technical definition derived from conveyancing practice before registration of proper title to land was introduced - see paragraph 4.9 et seq.
a member of that genus which can be extracted from the proceeding items in the list, ie “a yard, garden and outhouse”.
4.7 Relevant Case Law
Whether a building (or land) is properly described as an 'appurtenance' must always depend very much on the particular facts and circumstances of each case and it is not possible to try to lay down any precise test[s].
However, it should be noted that for a building to be correctly to be considered as an ‘appurtenance’ it must be subsidiary to the principal property. Indeed, one helpful view is that “the concept envisaged is that of principal and accessory”- see Debenhams -v- Westminster City Council [1987 - 1 All ER 51]. Thus, the concept has more to do with subservience to property falling within the meaning of Section 66(1)(a).
One also needs to bear in mind the ejusdem generis rule, so the “other appurtenance” must be in the same genus as the proceeding words, ie a yard, a garden, outhouse - see paragraph 4.4 above.
So, in the context of s.66 LGFA 1988, the word ‘appurtenance’ carries a narrow and generally restrictive meaning rather than a broad one – a point further amplified in the decided cases described below.
4.8 In considering whether a building can be properly described as an ’appurtenance‘, it is important to have regard to the leading judgment in Clymo (VO) -v- Shell-Mex and BP Limited [CA (1963) 3 R&VR 471]. Although this decision was in respect of s.22(1)(a) (as amended) of the Rating and Valuation Act 1925, it is considered highly unlikely that any Court would hold that a different interpretation should be given to the meaning of the word "appurtenance" in s.66(1)(b) of the LGFA 1988.
4.9 The meaning which Parliament intended to be given to the word ‘appurtenance’ within s.66(1)(b) LGFA 1988 is its ordinary conveyancing meaning - a meaning which was more common when land was conveyed by express words of grant than by reference to title numbers under the present land registration scheme. In Trim -v- Sturminster Rural District Council (1938) 2KB 508, Slessor L J observed at page 515 (cited with the approval of Upjohn L J in Clymo, at page 473 - first column):
"In the definition to which I have referred certain specific matters are mentioned, that is to say, any yard, garden and outhouses, and then follows the word "appurtenances". That word has had applied to it, through a long series of cases mostly dealing with the meaning of the words in demises, a certain limited meaning, and it is now beyond question that, broadly speaking, nothing will pass, under a demise, by the word "appurtenances" which would not equally pass under a conveyance of the principal subject matter without the addition of the word, that is to say, as pointed out in the earlier case of Bryan -v- Wetherhead, that the word "appurtenances" will pass the house, the orchard, yard, curtilage and gardens, but not the land. That view, as far as I understand the authorities, has never been departed from, except in certain cases it has been held that the word "appurtenances" may be competent to pass incorporeal hereditaments. Certainly no case has been cited to us in which the word "appurtenance" has ever been extended to include land, as meaning a corporeal hereditament, which does not fall within the curtilage of the yard of the house itself, that is, not within the parcel of the demise of the house.” (NB The emphasis has been added.)
4.10 Although the case concerned enfranchisement under the Leasehold Reform Act 1967, further guidance on this point comes from Methuen-Campbell -v- Walters [QB525 (1979) 1 All ER 606, 621F) and see also a brief report in Estates Gazette 1978 Vol 247, p899. The statutory provisions entitled the tenant to seek a grant of enfranchisement for “the house and premises” held on a long lease. The issue in the case was whether a paddock that was included in the lease (some 38m from the rear wall of the house) was part of the ‘premises’. The court held that it was not, since it was not an appurtenance. Goff LJ reviewed the authorities on the meaning of appurtenance, and he quoted with approval the passage from Slesser LJ’s judgment in Trim v Sturminster RDC. It did, he said, confine ‘appurtenances’ to the curtilage of a house and he said [at 537QB]:
“So in the end, in my judgment, the crux of the problem becomes: Is this within the curtilage?
The word ‘curtilage’ is defined in the Shorter Oxford English Dictionary, 3rd ed (1973) as ‘A small court, yard, or piece of ground attached to a dwelling house and forming one enclosure with it.’ Note 7 in Stroud’s Judicial Dictionary, 4th ed. (1971), p 663 suggests that it may be wider than that. We have looked at some of the cases cited in Stroud, but I do not think they afford us any assistance. What is within the curtilage is a question of fact in each case, and for myself I cannot feel that this comparatively extensive piece of pasture ought to be so regarded, particularly where, as here, it was clearly divided off physically from the house and garden right from the start and certainly at all material times.”
Roskill LJ and Buckley LJ concurred at 540 and 541-2 respectively.
4.11 Therefore, in order for a building to be regarded as an "appurtenance" it must pass in a conveyance of the principle subject matter (the dwelling house, flat, etc.) without being specifically mentioned in that conveyance. Thus, if it is contended that Building A is appurtenant to Building B, then if the conveyance were expressed to convey "All that Building B" (with no further wording added), the Courts would hold that Building A was also conveyed and was an appurtenance to Building B. In relation to registered land the ’Parcels Clause‘ (ie the words which describe the demised premises attached to the registration certificate) will provide a similar indication.
4.12 Whilst a building which passes under a silent conveyance is ipso facto (by that very fact) an 'appurtenance', if it also lies within the curtilage of the main demise, ie the dwelling house, this will be a further supportive factor that it is an 'appurtenance' and assist in answering the 'conveyancing' question. This may be explained by consideration of the relatively contemporary expression of what it means to be "within the curtilage" of a house which was set out in the judgement of Buckley L J in Methuen-Campbell -v- Walters (1979) QB525, 543, viz:
"In my judgement, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that we do not have associated with them at least some few square yards of land, constituting a yard or basement area or passageway or something of the kind, owned and enjoyed with a house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as part of one messuage or parcel of land as extending must depend upon the character and the circumstances of the item under consideration.”
4.13 In Methuen-Campbell, the meaning of ‘appurtenance’ was held on authority to be synonymous with ’curtilage‘. Though the words ‘appurtenance’ and ’curtilage‘ are separate legal terms, as a general rule it is considered there will be a common relationship between appurtenance and curtilage and this approach will apply in the vast majority of cases.
4.14 In Secretary of State for the Environment, Transport and the Regions -v- Skerritts of Nottingham [CA 2000 JPL], a case concerning a listed building enforcement notice served on a stable block within the grounds of the Grimsdyke Hotel, Harrow Weald. This was a substantial listed Grade II building and the contravention concerned 19 unauthorised windows installed in the stable block. The appeal turned on whether the stable block, which was not separately listed, was within the curtilage of the Hotel. In his judgement, Robert Walker LJ, although expressing the view that Dyer -v- Dorset County Council  1 QB 346 was correctly decided, continued:
“But in my respectful view this court [Dyer] went further than it was necessary to go in expressing the view that the curtilage of a building must always be small, or that the notion of smallness is inherent in the expression. No piece of land can ever be within the curtilage of more than one building, and if houses are built to a density of twenty or more to an acre the curtilage of each will obviously be extremely restricted. But Nourse LJ recognised that in the case of what the now-moribund Settled Land Act 1925 refers to as a ‘principal mansion house’ - which is what Grimsdyke was built as - the stables and other outbuildings are likely to be included within its curtilage. I also respectfully doubt whether the expression ‘curtilage’ can usefully be called a term of art. That phrase describes an expression which is used by persons skilled in some particular profession, art or science, and which the practitioners clearly understand even if the uninitiated do not. This case demonstrates that not even lawyers can have a precise idea of what ‘curtilage’ means. It is, as this court said in Dyer, a question of fact and degree.” (NB The emphasis has been added.)
4.15 In Martin & Others -v- Hewitt (VO) [2003 RA 275], at page 284, the President of the Lands Tribunal, Mr George Bartlett QC, considered whether certain boathouses on the shores of Lake Windermere could be considered to be ‘appurtenances’ for the purposes of s.66(1)(b). In doing so he reviewed a considerable body of authority relating to the meaning of the word and concluded (at paragraphs 20 and 21) that appurtenance was not intended to encompass land or buildings lying outside the curtilage of the property and stated:
“In all the statutory contexts that fell to be considered in these cases, therefore, “appurtenance” was held to be confined to the curtilage of the building in question.”
In Martin, the Lands Tribunal found that the boathouses were not within the curtilage, a finding which was fatal to the ratepayer’s case.
4.16 In Head (VO) v Tower Hamlets London Borough Council [2005 RA 177], at page 183, the President of the Lands Tribunal succinctly makes this point (at paragraph 22):
“It is unnecessary for me in this decision to review again the cases that deal with the meaning of “appurtenance”. I accept Mr Mould’s [Counsel for the Valuation Officer] submission that in this statutory context it embraces property that will pass with the principal subject matter of a conveyance without the need for express mention and is confined to the curtilage of the building in question.” [NB The emphasis has been added.]
4.17 Again in Winchester City Council v Hancock (VO) [2006 RA 265], at pages 275-276, the Lands Tribunal (His Hon Judge Mole QC and N J Rose FRICS) decided as follows:
“23. In our judgment the short but decisive answer to Mr Scrafton’s submission is that, as a matter of fact and degree, we do not find that either sewage treatment works falls within the curtilage of any of the dwellings that it serves. It may well be true that the “right to use" the sewage treatment works would pass on a conveyance. However, even if it were useful to talk of such an incorporeal right as being “within the curtilage” of the dwelling it serves, which we doubt, that is nothing to the point. It is the physical hereditament comprising the sewage treatment works that must be within the curtilage of the dwelling (or dwellings), if it is to be appurtenant to it (or them).
24. We find that the dwellings in St Andrew’s Green are, as the maps and photographs show, modest semi-detached houses, on their own plots, surrounded by their own gardens with their boundaries marked with hedges and fences. Each one stands in its own curtilage. The freehold of six of these dwellings has been sold by the appellant. However, it does not seem to us that it matters whether the houses are held by virtue of individual freeholds or are occupied under a tenancy from one landlord, in the circumstances of these dwellings. A house on its own plot with its own boundaries will be very likely to have its own curtilage although it is held on a tenancy from the same landlord as the houses on either side of it. Even though the sewage treatment works at St Andrew’s Green appears to adjoin the curtilage of number 1 St Andrew’s Green, and thus a continuous red line could be drawn around both of them, they are not in the same curtilage, any more than number 1 St Andrew’s Green is in the same curtilage as number 2 St Andrew’s Green, which it also adjoins.
25. The factual situation at Southbrook Lane, Micheldever, is even more hopeless, so far as the appellant’s case is concerned. The sewage treatment works there serves 58 dwellings in two distinct areas of housing, both of which are well away from the sewage treatment works itself. The 58 individual dwellings are detached, semi-detached and terraced and (with the possible exception of some of the terraced houses) all appear to have their own curtilages. The works does not lie within the curtilage of any dwelling or group of dwellings it serves.”
4.18 In summary, all these cases, and the Winchester decision in particular, demonstrate that term “appurtenance” in s.66(1)(b) has a restricted meaning. This fine nuance is succinctly expressed by His Honour Judge Huskinson in the Lands Tribunal decision Allen (VO)-v-Mansfield DC and Bassetlaw DC [2008 RA 338], at page 350:
“26. It is necessary if a DHS is to constitute domestic property that the DHS constitutes an appurtenance belonging to or enjoyed with property falling within section 66(1)(a) – i.e. an appurtenance belonging to or enjoyed with property which is used wholly for the purposes of living accommodation. I accept that for a DHS to be an appurtenance of such property the DHS must be contained within the curtilage of such property, see paragraph 14 above. The question of whether a DHS falls within such a curtilage will be a matter of fact and degree in every case.”
4.19 Consideration of “Other Appurtenance”
When considering whether something is an “other appurtenance” within s.66(1)(b), the subject clearly has to be within the curtilage of the “living accommodation”. Situation within the curtilage is a necessary condition for appurtenancy; but it may not be a sufficient condition. However, in practice in the majority of cases the question, ‘What would pass by virtue of a conveyance naming only the principal subject (ie the main dwelling)?’ is effectively answered as ‘Everything within its curtilage that is capable of being conveyed by the owner’.
4.20 But how does one determine the extent of the domestic curtilage?
In some cases this may be easy to determine from the facts on the ground and, in this respect, HH Judge Huskinson gives some clear illustrations in his decision in Allen - separation of the subject property under consideration from the unit[s] of living of accommodation by “public highways or footpaths” or by residential units of living accommodation or property and the unit wholly used for the purposes of living accommodation having an “enclosed gardens” that does not enfold the subject eg a farmhouse with enclosed garden separated from a stable block.
However, some cases may not be so clear cut.
4.21 Likely criteria for determining the domestic curtilage of “living accommodation”:
Although it is possible that there may be no precise answer, because it will be a matter of fact and degree in every case, a sound starting point will be to look at the facts on the ground as indicated by the bullet points and comments below. These will include:
Identification of the natural physical curtilage of the principal living accommodation (ie the dwelling).
This can be achieved by noting the presence of fences, hedges, ditches, walls of other buildings, roads, drives and other access ways.
The physical proximity between the two buildings.
Although very close proximity is not necessarily required, the closer together two or more buildings are to each other, the more likely it is that any one may be within the curtilage of another.
The extent of the physical link or connection between the two buildings.
It may be that a property, which is contiguous with another, is more inherently capable of being within the same ‘curtilage’ of the other, particularly if it is possible to pass internally from one to the other. However, neither of these characteristics is essential.
The extent to which two buildings share facilities, eg common access, main services, etc.
The more things that are shared, such as rights of access, and are exclusive to the owners or occupiers of the buildings in question, the more likely these premises are to be within the same curtilage.
The extent to which there is any common history between the two buildings, eg constructed at the same time or a long-running record of connected use.
Buildings might be regarded as being within the curtilage of a principal house if they were constructed at the same time as part of a traditional estate.
However, it should be noted that is considered the curtilage of a traditional farm house on a working farm, surrounded by buildings used for agricultural purposes will only have a restricted curtilage to the living accommodation and ancillary domestic use buildings. See not only s.66(1) but also the agricultural exemption provisions in paragraphs 3 and 5 of Schedule 5 to LGFA 1988.
It is not possible, however, for a congregation of buildings in the nature of a housing estate to have a curtilage for the purposes of s.66(1)(b) - see Allen (VO -v- Mansfield District Council and Bassetlaw District Council [2008 RA 338].
The relative size and/or nature of the two buildings - is one ancillary to the other? Is one building a clear ’hub’ and the other a ‘satellite’ to it?
It is normally the case that ancillary structures will be smaller than the related principal dwelling house
The relevant use to which the property at issue is put.
The actual use of the land and buildings under consideration is an important ingredient of the overall judgement which needs to be formed, as the nature of that use will have a bearing on whether or not the land/property in question can be considered an ‘appurtenance’ to another building. Accordingly, “when considering all the facts it becomes relevant to consider the purpose for which the relevant buildings are occupied and the use to which the apparent appurtenance is put”. Hence, if the owner has in fact put the property in contention to such uses that it cannot be properly be described any longer as an ‘appurtenance‘, then that conclusion of fact is properly reached – see Clymo at page 474.
NB The above list is only a tool for analysis and to assist the decision making process. The weight to be placed on each of the factors will be a matter of fact and degree in any given case.
4.21 In cases of doubt concerning an appurtenance, or where any arguments are put to the contrary, advice should be sought from the Technical Adviser without delay.
5.1 For property to fall within the definition of a "yard, garden, outhouse or other appurtenance", s.66(1)(b) requires that it meets a further test, namely "belonging to or enjoyed with living accommodation".
5.2 In contrast, it is not necessary for a "private garage" or "private storage premises” envisaged under s.66(1)(c) and (d) to “belong to’” or “be enjoyed with” property used wholly for the purposes of living accommodation in order to qualify as “domestic property”. Indeed, the fact that a “private garage” or “private storage premises” are detached from and/or situated some distance from a dwelling house is not relevant. See Andrews (VO) -v- Lumb [1993 RA 124].
5.3 "Belonging to"
In Martin & Others, the President of the Lands Tribunal observed that:
“While “enjoyed with” would imply considerations related to occupation, “belonging to” is apt to embrace considerations of ownership.”
Thus the meaning of the phrase "belonging to" in s.66(1)(b) is synonymous with ownership and the primary test in respect of ’appurtenance’ should be interpreted as property that would pass in a conveyance of the principle property (the dwelling house, maisonette, flat, etc.) without further mention. Bar some exceptional cases, property “belonging to” a dwelling house will lie within its curtilage.
5.4 "Enjoyed with"
In order to meet the "belonging to” or “enjoyed with" tests, the appurtenance must not only have a close affinity with the 'domestic property' by "belonging to" and meeting the criteria in 4.5 above, but also, it must be used, as part of the resident’s enjoyment of the occupation of the living accommodation. In this latter respect, the etymology of the word 'domestic' [from the Latin word for home, domus] is particularly relevant. The expression "enjoyed with" must necessarily involve some commonality of use with the living accommodation. This means that a non-domestic use taking place within the appurtenance, such as an outbuilding converted to an office or consulting room, would be rateable provided the use was more than de minimis - see RM Vol 4 sect sect 2 pt b para 7 (including end of day provisions) below.
5.5 Occupiers of flats or houses in a single development may enjoy the right to use, in common with their neighbours, premises on the development, eg laundry rooms, common rooms or a swimming pool. Whether such premises are 'appurtenances' “belonging to or enjoyed with” the various dwellings is a question of fact and degree in each case. To come within the definition there should be some clear indication that the premises are provided and used as a facility for a group of properties so that the occupiers have the right (eg given in their respective leases), or would regard themselves as having some proprietary right, in the premises.
However, where premises serve a whole estate or wider area they should be regarded as being provided as a community facility rather than something used in common by occupiers of dwellings. Consequently they will lack the necessary element of "belonging to” or “being enjoyed with" any particular domestic property and will be non-domestic.
5.6 A chalet situated within the curtilage of a dwelling and let for holiday accommodation would neither be "belonging to" nor "enjoyed with" the dwelling and would be rateable if available for letting for more than 140 days a year - See RM vol 5 sect 480.4.
Having analysed the phrases “belonging to” and “enjoyed with” in s.66(1)(b), the word “or” that connects them also requires consideration.
Superficially, it might seem that it is only necessary to establish that either "belonging to" or "enjoyed with" applies.
However, an easier [and rather more obvious] explanation is that "belonging to or enjoyed with" should properly be read as ‘belonging to or, as the case may be, enjoyed with’. This is a perfectly acceptable approach. If "belonging to" is appropriate to some of the items in the list which it qualifies but not others, and "enjoyed with" is the appropriate concept for those others, it explains why the provision is worded the way it is. In short, "belonging to or enjoyed with" can be taken to mean either "belonging to" or "enjoyed with", as appropriate to the subject under discussion, be it “yard, garden, outhouse or other appurtenance”.
Stables and other equestrian facilities may be regarded as “domestic property” providing they meet the following tests, namely:
i) They qualify as an "other appurtenance" – See paragraphs 4.5 - 4.16 (above)
ii) They are "enjoyed with" the living accommodation.
The "other appurtenance" considerations will generally exclude stables and other equestrian facilities located outside the domestic curtilage of a dwelling house from qualifying as “domestic property”. This means that only stables within the domestic curtilage, which are used in relation to the resident’s enjoyment of the living accommodation, will qualify. Stables and equestrian facilities used as part of a business, eg livery, riding school; or used professionally/semi professionally for show jumping, eventing, polo, etc., will not qualify as domestic appurtenances and will be rateable either as separate hereditaments or as part of a composite hereditament.
Stables & Loose Boxes - RM 5:1007 and the relevant Revaluation Practice Note
Riding Schools & Livery Yards - RM 5: 995 and the relevant Revaluation PN
Racing Stables / Racing Yards - RM 5: 996 and the relevant Revaluation PN
Stud Farms - RM 5: 1005 and the relevant Revaluation Practice Note
As an aside, stables will only be exempt as agricultural buildings under paragraph 5(1)(a) of Schedule 5 to LGFA 1988 if they are occupied by horses used solely for farming the land (eg plough horses) or destined specifically for human consumption. See paragraph 5.3.1 etc of RM 4: Section 8 Part D: Appendix 1.
6.1 S.66(5) LGFA 1988 provides:
"Property not in use is domestic if it appears that when next in use it will be domestic."
6.2 Thus, an unused hereditament can be wholly domestic providing it appears that it will be domestic when next in use. For example it will normally be expected that a house or flat when not currently occupied will next be used as living accommodation and therefore will be treated as domestic and banded for Council Tax. Equally it will be expected that most business and commercial hereditaments will be used for non-domestic purposes when next in use and will remain classed as non-domestic.
6.3. The word used in the definition is "property" and not ’hereditament‘. Part of a hereditament can be domestic and part non-domestic and this will mean it is a composite hereditament (ie a hereditament where part only is domestic). A composite hereditament can also be one where the only current use is non-domestic but part is unused and it is expected when next in use that part will be domestic. Also “property” can include more than one hereditament - see Head VO -v- LB of Tower Hamlets [RA 2005] 177].
6.4. When considering the assessment of any hereditament, it is essential to decide whether it is wholly or partly domestic, as this will also determine whether it should be assessed for rating either as a wholly non-domestic or composite hereditament. This will include considering whether any vacant part has the appearance that, when next in use, it will be domestic property.
6.5. In most cases, when a hereditament is vacant, it will be a straightforward matter to determine whether it is domestic or non-domestic. In other cases, particularly where only part of a hereditament is vacant, deciding what is the next likely use may be more difficult. See RM Vol 4 sect 9 para 9 Disused Living Accommodation in Composite Hereditaments.
6.6. A typical example is accommodation over a shop, originally built as living accommodation, but now disused for some years having also at times been used for storage. In this case, the test is one of ‘appearance’ rather than the ‘intention’ of the particular owner at the time. Thus, should it appear from the property itself that the next use will be domestic, then it should be considered domestic, and vice versa.. But there are further nuances , as explained below.
6.7 To whom must it appear?
The statutory test is to have regard to the 'use' to which it appears the property will be put when next in use. In order to meet this test, it must appear to the Valuation Officer that when next in use the property will be 'domestic' or, on appeal, it must appear so to a valuation tribunal or, on further appeal to the Lands Tribunal.
6.8 When must it appear to the VO?
Non-domestic rates are a daily tax (see s.42(2) LGFA 1988) and the rating list can be altered from day to day. Strictly, then, the issue should be addressed in respect of each and every passing day. Thus, when a day is found when it appears to the VO that the next use of the property will be a domestic one, then on that day the property is "domestic property" and this should be reflected in the relevant Non-Domestic Rating and Valuation List entries from that date, as appropriate.
6.9 From what evidence must it so appear?
It must appear from all of the evidence relating to the hereditament that is available (or could be available) to the VO on the day referred to in 6.8 above.
6.10 The test should be applied to the property broadly in its existing state. In deciding whether the property has the appearance that when next in use it will be domestic property, its present capability for domestic or non-domestic use should be considered. If extensive works of conversion are required then it will not be presently capable of the alternative use, eg a disused office block with planning permission for conversion to flats is, until converted, not readily capable of being occupied as living accommodation. Moreover, its next use will be as a building site during conversion works rather than in domestic use. It be that, when building works commence, the property could cease to be a hereditament and therefore be deleted from the Non-Domestic Rating List.
7.1 To qualify as "domestic", property is required by s.66(1)(a) LGFA 1988 to be "used wholly for the purposes of living accommodation". Thus any non-domestic use makes the property potentially rateable and, as liability accrues in respect of each day, in theory, any substantial non-domestic use in any one day could be rated. In practice a de minimis test should be applied to qualify the expression "used wholly".
No specific definition has been included in s.66 (or elsewhere) as to what comprises de minimis use, except in relation to property which is wholly or mainly used in the course of a business for the provision of short-stay accommodation (see RM Vol 5 sect 125 para 2).
7.2 Statements about the degree of non-domestic use that might be permissible before rateability is triggered were made during the Parliamentary and consultative processes leading up to the LGFA 1988 and these guidelines should be used. During the House of Lords Report Stage of the Local Government Finance Bill, on 4 July 1988, Lord Caithness said:
"Where the use of domestic property for a non-domestic purpose does not materially detract from the domestic use, that should not result in that property being rated".
In the Consultation Paper, "Proposed Amendments to the Boundary between Domestic and Non-Domestic Property", issued in December 1988 the issue of Minor Non-Domestic Use was considered in paragraph 4.2. Concerning the point at which the level of non-domestic use would become material and therefore liable to be rated, the suggested guidelines were:-
"The question of whether the use of a domestic property for non-domestic purposes is material is to be decided having regard in each case to:
The effect of the extent and frequency of the non-domestic use, and
Any modifications made to the property to accommodation that use".
7.3 Combining those statements, non-domestic use of part of a dwelling should only be considered to be rateable when it occurs within the curtilage of, or when it belongs to or is enjoyed with, a domestic property, when that use materially affects the enjoyment of the residence as a residence, having regard to the extent and amount of use, and taking account of any structural changes that have been made to the property to facilitate that use.
7.4 Additionally s.67(4) provides that:
“A hereditament is relevant, non-domestic, composite, unoccupied or wholly or partly occupied on a particular day if (and only if) it is relevant, non-domestic, composite, unoccupied or wholly or partly occupied (as the case may be) immediately before the day ends”.
"For the purpose of deciding the extent (if any) to which a hereditament consists of domestic property on a particular day ..... the state of affairs existing immediately before the day ends shall be treated as having existed throughout the day".
However, in arriving at this determination, the particular state of affairs existing immediately before the day ends is not the sole criterion and a wider view should be taken, as was explained in Tully -v- Jorgensen (VO) [2004 RA 233]. In Tully, the President of the Lands Tribunal, Mr George Bartlett QC said at paragraph 19:
"Liability to the non-domestic rate under section 43(1) is a daily liability that arises where the ratepayer is in occupation on a particular day. But for him to be rateable his occupation must possess the ingredients of rateable occupation, including that of permanence: see Ryde on Rating paragraph B-. Similarly, where section 67(5) refers to the state of affairs existing immediately before the day ends it is not requiring that attention be confined to the particular activities being carried on at a precise moment in time. What has to be considered is the use of the property with all its features and all that section 67(5) does is to identify the material time by reference to which any change in the use of the property is to be related.”
This may be applied in practice by taking, for example, the instance where a living room in domestic property is used in the mornings only for the transaction of a small amount of PO business as a community post office.
Weighing up the scale of non-domestic use of the property together with all its physical features, the room is not set aside for the non-domestic business and is furnished for domestic purposes with no structural adaptations. Any advertising is of a minimal nature. In such a case an assessment should not be raised.
See RM 5 Sections 125(2), 480(4) and 1070(4).