Part 2: appendix 1 - The City Duck Case
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
This appendix gives guidance on interpretation of the “rebus sic stantibus” principle following the decision of the Court of Appeal in the case of Williams (VO) v Scottish & Newcastle Retail Ltd and Allied Domecq Retailing Ltd.
2. The decision
2.1 Although the main thrust of the Lands Tribunal’s decision was upheld, the judgement did reject some of the detailed points made. In summary the Court of Appeal held that:
the starting point for consideration of rebus sic stantibus is the wording in Schedule 6 para 2(7) of the Local Government Finance Act 1988 (the 1988 Act);
the Lands Tribunal was correct to reject the formulation of “mode or category of occupation” as set out in Midland Bank v Lanham  RA 1 (the “Midland Bank” case);
the Lands Tribunal’s formulation of “mode or category of occupation” in Fir Mill Ltd v Royton UDC and Jones (VO)  7 RRC 171 (the “Fir Mill” case) (ie. “a shop as a shop but not as any particular kind of shop; a factory as a factory, but not as any particular kind of factory”) should be regarded as recognised by Parliament (in the Local Government Act 1966, General Rate Act 1967 and Local Government Finance Act 1988) as “on the right lines, even if its precise scope has to be worked out on a case by case basis”;
the Lands Tribunal was wrong in holding that in determining mode or category of occupation regard should be had to “the methods of valuation commonly applied by rating surveyors”;
although the Lands Tribunal was right to allow for the possibility of minor alterations to the hereditament, and to adopt the test of “minor” rather than trying to distinguish between structural and non-structural alterations, it was wrong to say that, in deciding whether alterations should be classified as minor, cost should be taken into account as an “absolute” figure;
the Lands Tribunal was correct to treat the two limbs of the rebus sic stantibus rule as separate tests.
3. Summary of practical implications
3.1 In summary, the main practical points arising from this decision are:
the phrase “value to the occupier of his occupation” referred to in the Lands Tribunal decision does not simply mean that the RV should be what the actual occupier would pay, as the value is quantified by reference to the hypothetical tenancy. (Section 4 below.)
the hereditament must be considered subject to the matters set out in Schedule 6 para 2(7) of the 1988 Act which must be taken at the material day. Sub-paragraphs (a) and (b) read as follows:
a. matters affecting the physical state or physical enjoyment of the hereditament,
b. the mode or category of occupation of the hereditament.
this is a statutory expression of the rebus sic stantibus rule. It is the hereditament having regard to all the matters set out in subparagraph 2(7) which is to be assumed to be offered “vacant and to let”. (Section 4 below.)
the measure of value is what the market would pay to occupy the hereditament in its existing physical state, subject to “minor” alterations, and for a use within the same mode or category as the actual use. (Sections 5 and 6 below.)
alterations normally carried out on a change of tenancy, which would not change the mode or category of occupation, should generally be regarded as “minor” provided a “reasonable man” looking at the hereditament as it stands and the proposed alterations would consider them to be minor. (Section 5 below.)
valuers will have to pay greater attention to the “mode or category of occupation” limb than has generally been the case since the Lands Tribunal decision in Midland Bank. (Section 6 below.)
in some cases a more detailed investigation will be required into the level of rent paid by different uses and into the terms of leases; in particular the use specified in review clauses. (Section 7 below.)
these appeals will have raised the profile of what constitutes “mode or category of occupation of the hereditament”. It is important that valuers appreciate the scope of this decision and rebut any arguments which seek a more restrictive interpretation than is justified by the decision.
3.2 The various points are considered in more detail below.
4. Basis of valuation
4.1 At paragraph 102 of the Lands Tribunal’s decision it says “the basis of rating is that the occupier of a hereditament is liable in respect of his occupation; and, given this basis of liability, it is consistent with it that the measure of the liability should be the value to the occupier of his occupation.”
4.2 At the Court of Appeal hearing, Counsel for the VO criticised this sentence of the Lands Tribunal’s decision as confusing two matters which should be kept separate (namely, liability to pay rates and the measure of liability). The Court of Appeal held that the test of rateability and the ascertainment of rateable value are “successive steps in a single process”, (namely “determining whether an actual occupier is liable to pay rates calculated by reference to the annual value shown in the list”).
4.3 Later the Court of Appeal identified that “there is ample material showing that the Lands Tribunal had well in mind that that value (the value to the occupier of his occupation) had to be quantified by reference to an hypothetical tenancy.” Naturally that would be on the terms laid down by statute. The Court of Appeal therefore confirmed that the Lands Tribunal did not confuse the two concepts - it treated them as separate steps in an overall single process.
4.4 The phrase “value to the occupier of his occupation” does not therefore simply mean that the RV should be what the actual occupier would bid, disregarding all other factors, since the value must still be quantified by reference to the hypothetical tenancy (for which in the vast majority of cases there would be a number of competing bids). This is clear from other passages of the Court of Appeal decision, such as paragraph 70 where the Court refers to the Fir Mill “shop as a shop, but not as any particular kind of shop…” as underlying the phrase “mode or category of occupation” in Schedule 6 para 2(7)(b) of the 1988 Act.
4.5 Case law has established that the hereditament must be assumed to be “vacant and to let”. But the hereditament must be considered in the state set out in Schedule 6 para 2(7) of the 1988 Act which must be taken at the material day. The matters set out in paragraph 2(7) refer to both the hereditament and its locality. Sub-paragraphs (a) and (b) read as follows:
- a) matters affecting the physical state or physical enjoyment of the hereditament,
- b) the mode or category of occupation of the hereditament.
4.6 This is a statutory expression of the rebus sic stantibus rule as it affects the hereditament. There is no inconsistency with the requirement to assume that the hereditament is vacant and to let since the hypothetical letting is subject to subparagraph 2(7). In other words, the hereditament must be valued vacant and to let for a use within the same mode or category of occupation as the actual use - for example a restaurant must be valued vacant and to let as a restaurant.
4.7 The measure of value is, therefore, what the market would pay to occupy the hereditament in its existing physical state, (excluding disrepair in appropriate cases), and for a use within the same mode or category as the actual use. How the Court of Appeal decision in the present appeals bears on these two limbs of the rebus sic stantibus rule is considered below.
5. Physical limb of the rebus sic stantibus rule
5.1 The following passages do not encompass disrepair, guidance for which is found in the Practice Note on the Rating (Valuation) Act 1999, in the Rating Manual Volume 4 : Section 4.
5.2 The hereditament must always be valued as it stands in its actual physical state. The question is, what alterations is it permissible to envisage an incoming tenant would reflect in the rental bid?
5.3 The Lands Tribunal, having decided that “minor” alterations are allowable, goes on to apply its findings of law to the facts of the particular cases (at paragraph 171 of its decision), and refers to the test in the following terms:
The correct approach is to look at the totality of the works in the context of the hereditament and then ask the question: are those works minor? It is essentially a matter of impression and common sense: would a reasonable man, looking at the hereditament as it stands at the material date and the proposed alterations, describe those alterations as minor?
5.4 The Court of Appeal upheld the Lands Tribunal’s test of “minor”. It also rejected any attempt to distinguish between structural and non-structural alterations and said that it was wrong to say that cost should be taken into account as an absolute figure.
5.5 The Court gave the example of the Dome to illustrate the latter point, that what might be a significant cost in one hereditament might not be so in another. The correct view is therefore that whilst the cost of alterations is a relevant factor, it does not determine the issue; the valuer should have regard to the nature of the works as a whole and consider whether they are minor. As stated by the Court, “the relative increase in rental value (compared to the cost of the physical alterations) is not determinative”; it is therefore simply one factor to take into account in deciding whether the works are minor.
5.6 The Court of Appeal gives the example of the physical limb not being so rigid as to prevent Burger King being considered as a possible bidder for the unit occupied by McDonald’s. And it also refers to the absurdity of not allowing any alterations when looking at units occupied by “well-known retail chains seeking to establish their identities and brand loyalties by distinctive fascias and fittings installed in uniform, featureless units”. The latter phrase is a reference to the fact that in Milton Keynes all the retail units started off as standard shell units which were then fitted out to the individual requirements of the occupiers.
5.7 On the other hand, the works to convert the two Milton Keynes properties to an alternative use, as a shop or restaurant, included removal of brick frontages, internal (mainly block-work) walls, suspended ceilings, raised concrete floor, lift shafts for goods, hoists/”dumb waiters”, staircase to first floor, customer WCs, etc, apart from fitting out works for the alternative use. Looked at overall, the Lands Tribunal held these to be more than “minor”.
5.8 The Court of Appeal generally approved of the Lands Tribunal’s decision which in turn basically approved Fir Mill (in particular). In Fir Mill, in respect of the physical limb, the Tribunal said that “Some alteration to a hereditament may be and often is effected on a change of tenancy. Provided it is not so substantial as to change the mode or category of use, the possibility of making a minor alteration …”’ can be taken into account. This provides further guidance on how to interpret the “minor” test; on the face of it, alterations normally carried out on a change of tenancy which would not change the mode or category of occupation would generally be regarded as minor judged from the viewpoint of a “reasonable man”.
5.9 In the Midland Bank case the Lands Tribunal postulated that the potential for carrying out structural alterations to the hereditament could properly be taken into account if it would affect the rent that a tenant would be prepared to pay. In fact, in practice the Lands Tribunal has never held that “structural” alterations more than de-minimis can be envisaged without offending the physical limb. In the very few cases where the point has been raised, such as West Dorset DC v Auton (VO)  21 RRC 390, the Lands Tribunal held that there was no evidence of demand for the alternative use postulated. VOA practice in respect of the physical limb is therefore unlikely to have been significantly affected by the present decision.
Conclusion on the physical limb
5.10 The “minor” test is therefore a question of fact and degree in each case. It is not significantly different to the previous wording used by the Lands Tribunal when considering possible alterations, other than it specifically avoids valuers having to debate whether or not a particular alteration is “structural”. The economic cost of the proposed alterations is still relevant, although it is simply one of the factors to take into account when considering whether the works are “minor”. Valuers should assess the likely competition from other occupiers for uses within the same mode or category of occupation as the actual use (see below). If such occupiers would normally make physical alterations to the property on taking a tenancy then prima facie these would be regarded as minor provided they do not offend the “reasonable man” test.
6. Use limb of the rebus sic stantibus rule
6.1 In respect of the interpretation of the phrase “mode or category of occupation”, the Court of Appeal held that the Lands Tribunal had directed itself correctly on the essential points of law, although it was wrong to have considered the “methods of valuation commonly applied by rating surveyors” as a relevant factor in determining mode or category of use.
6.2 It is clear, reading the Lands Tribunal decision as a whole, that it intended to provide a practical approach to valuation in line with its interpretation of the law. The decision refers several times to the Fir Mill test with approval, “a dwelling-house must be assessed as a dwelling-house; a shop as a shop, but not as any particular kind of shop; a factory as a factory but not as any particular kind of factory”, and in its summary at para 198(b) the Tribunal refers to “shops, offices and factories” serving as examples of modes or categories of use having regard to the “principal characteristics of use”.
6.3 Further, the Tribunal identified one of the strands of thought underlying Fir Mill as being that the assessment must reflect the value of the hereditament for the purpose for which it is occupied “together with a concern that the purpose should not be so narrowly defined as to restrict unrealistically the range of competition that may be assumed.”
6.4 The Court of Appeal states, paragraph 70, that “Parliament’s adoption of the expression “mode or category of occupation” (in Schedule 6 para 2(7)(b) of the 1988 Act) must be taken as recognising that the formulation in Fir Mill is on the right lines, even if its precise scope has to be worked out on a case by case basis.”
6.5 The Lands Tribunal put forward two factors to which regard should be had in applying the Fir Mill approach, one of which (the methods of valuation commonly applied by rating surveyors) has now been held by the Court of Appeal to be irrelevant. The other is the “principal characteristics of the use”.
6.6 Within the Lands Tribunal’s decision are some examples and guidance as to how to judge the principal characteristics of use. It is clear that both the Lands Tribunal and the Court of Appeal regard the Fir Mill interpretation as being correct. The phrase “mode or category of occupation” therefore means a use for the same general purpose, hence the examples of shops, offices and factories. There are however a number of uses which will be in a mode or category of occupation of their own. In its decision the Lands Tribunal gave the following examples:
a) “The characteristic of a shop is the retail sale of goods and services for use off the premises.” (LT para 191.)
b) “A restaurant is primarily used for the consumption of food on the premises, the consumption of alcoholic and non-alcoholic drinks being ancillary to the provision of food.” (LT para 191.)
c) “The principal characteristic of the use (of the Rose and Castle and City Duck/City Fayre, Milton Keynes - a public house and a public house/café respectively) is the sale of alcoholic and non-alcoholic drinks and food for consumption on the premises.” (LT para 190.)
d) A wine bar would probably have fallen into the same mode or category of occupation as the appeal properties (public house and public house/café-bar). (LT para 191.)
e) A launderette would probably have fallen within the same mode or category of occupation as general shops on the Fir Mill approach. (LT para 95, referring to Vesta Launderettes v Smith (VO).) (Also, see para 96 and reference to another launderette case Byrne v Parker in the Court of Appeal. In that case the Court of Appeal had held, applying Fir Mill’s “a shop as a shop but not as any particular kind of shop” that it was clear one should have regard to general shop uses as well as the actual use as a launderette.)
f) A wholesale warehouse would probably have fallen within the same mode or category of occupation as general warehouses on the Fir Mill approach. (LT para 95 referring to Makro Self-Service Wholesalers Ltd v Brennan (VO).)
6.7 As further examples, banks and building societies will probably fall within the same mode or category of occupation, along with other similar A2 financial and professional uses. These could be characterised as quasi-office uses in shop type properties where the services provided are principally to visiting members of the public. Restaurants and public houses will also each probably form their own mode or category. Offices in former shops are unlikely to be in the same mode or category as shops (but see section 7 below).
6.8 It should be borne in mind that the use needs to be looked at on the facts of each case. For example, when valuing a pub-restaurant where it may be difficult to decide which is the predominant use, evidence of other food-led pubs and restaurants with high drinks trade will be relevant.
6.9 The way a particular individual runs his particular business is irrelevant to its rateable value. This is clear from the Court of Appeal’s and Lands Tribunal’s reliance on the Fir Mill interpretation of the phrase “mode or category of occupation” (see above), and also from examples given in paragraph 71 of the Court of Appeal decision; the Court states that the fact that a ratepayer leaves his premises half empty, or runs it in an inefficient manner does not go to category of occupation, but to the way the particular business is run. Similarly, in respect of public houses, a brewer can be envisaged as in the market for a free house where the evidence shows this to be the case.
The relevance of planning (paragraph 72 of the Court of Appeal decision)
6.10 The Court of Appeal state that, as a matter of law only, planning use classes are not determinative of mode or category of occupation. The Court accepted this qualification by Counsel for the VO on the basis that “any system of classification for planning purposes must be expected to reflect economic and social realities”. However, the Court hints, without expressing a view on the matter, that perhaps the B1 use class is so wide as to span more than one mode or category of use. It is clear that within use class A3 the Lands Tribunal consider there is more than one mode or category of use.
6.11 Planning use classes form part of the background against which the valuation must be made. The uses to which a hereditament may be put is an essential characteristic of the hereditament. Where a potential use to which the property could physically be put requires express planning consent it is necessary to consider whether or not such consent would be granted. However, the need for an express permission would in most cases suggest that the use should be regarded as in a different mode or category for rating purposes. Even if a change of use is permitted by the relevant General Development Order, for example A3 use to A1 use, the fact that the use is within a different use class would often suggest that it is in a different mode or category for rating purposes.
6.12 The planning use classes therefore will generally act as a constraint to uses which can be assumed for rating purposes. Uses within a mode or category of occupation will not often be wider than the relevant planning use class. Conversely, the mode or category of occupation for rating may be narrower than the relevant planning use class.
6.13 Unoccupied properties are subject to specific rules, introduced as a disincentive to occupiers deliberately leaving properties empty to avoid liability for rates. These rules are an exception to the normal law of rating whereby it is the occupier who is liable. Unoccupied properties are generally valued according to their next likely use although it is necessary to weigh all evidence, including the previous use having regard to the principles outlined in paragraph 5 above, before coming to a view. In the case of new hereditaments the use assumed should be that to which the hereditament is likely to be put when first occupied. Where a hereditament’s last use fell within a central list class it is necessary to make a judgement as to the use to which it is most likely to be put when next occupied for a non central list use. (See RM 2:12.)
6.14 When considering the “mode or category of occupation” of a hereditament, the first question to be addressed is “what is it used for?” Unoccupied property which is not used for anything, since it is unoccupied, does not have an actual “mode or category of occupation” against which other alternative uses can be judged. Nevertheless regard should be had to both the next likely use and to the previous use when considering the use limb of the rebus sic stantibus rule.
6.15 Any suggestion that “vacancy” in itself is “a mode or category of occupation” is unsustainable and must be rejected.
6.16 The Lands Tribunal in LTE v Croydon LBC and Phillips (VO)  RA 225, after considering the explanation of the law as set out in Fir Mill, said “in our view the only exception to the rule that one does not take into account another mode of use is where no beneficial use is being made of the property.” This is further authority for the view that unoccupied properties are subject to different rules.
Conclusion on the use limb
6.17 When considering alternative uses which might be regarded as within the same mode or category of occupation as the actual use it is the principal characteristics of the use which are relevant. This is a matter which must be considered on the facts of each case, in line with the guidance and approach outlined above.
7. Rebus sic stantibus and the evidence
7.1 The interpretation of the two limbs of the rebus sic stantibus rule, physical and use, is to be considered on the facts and evidence available in each case. Any rent passing on the property to be valued and rents and assessments of hereditaments used for a purpose within the same mode or category of occupation as the hereditament being valued will normally form the best evidence. This does not however mean that rents and assessments of properties used for another mode or category of occupation are irrelevant.
7.2 The Lands Tribunal stated that all relevant evidence was admissible, and that it was for the valuer to judge the weight to be given to evidence of rents or assessments of hereditaments in other uses. The Tribunal made a comparison with valuers adjusting for different physical and locational characteristics, and commented that valuers should adjust for use in a similar way.
7.3 In any rating valuation, if the hereditament is let the rent passing will form the starting point for a valuation - Lotus & Delta v Culverwell (VO) 1976 RA 141. The weight given to the actual rent will depend on how closely it conforms to the terms of the rating hypothesis. Weight should also be given to rents of comparable hereditaments, but again the degree of weight will depend on how closely the terms match those of the hypothetical tenancy. One of the terms of the hypothetical tenancy is that the hereditament can only be used for a use within the same mode or category of occupation as the actual use.
7.4 The Lands Tribunal gives an example, at paragraphs 140-141, of how evidence from hereditaments in a different mode or category of occupation may be used to assist in the valuation of the subject property. The example refers to an office (in premises built as a shop) in a shopping street; if the evidence from other parts of the street is that offices in former shop premises pay the same as shops and restaurants, the conclusion may well be “that the value of the subject premises as offices is to be found in the rents and assessments of the adjacent shops and restaurants and he will make his valuation on the basis of the zone A prices that are established for this part of the street frontage”. The valuer is still valuing as an office, “but by reference to rents and assessments of shops and restaurants, because he finds that from those rents and assessments can be derived the rent that a tenant would pay to occupy the subject hereditament as an office”.
7.5 However, in the Tribunal’s example it could be argued that the valuer should go straight from the rents or assessments of other offices in the street to the assessment of the subject office. Whether this is correct will depend on the evidence - if there are a number of offices in former shops, with rents at different levels of Zone A in accordance with changes in retail values in the street, then the conclusion would be that offices pay the same as shops and so the example holds. If, on the other hand, the answer is that offices pay a consistent level irrespective of the retail Zone A, and that it is just coincidence that in one case the two are the same, then the valuer will apply a level of value drawn from the rents/assessments of offices alone.
7.6 It is therefore a matter of what the evidence shows in each case. In some cases this will require a closer investigation of the rental and other evidence than may in practice have been undertaken in the past.
Rental evidence and the effect of other uses in the real-world market
7.7 A further question raised by the decision, and not directly addressed by it, is how much weight can be given to a rent which has been agreed on the open market in competition with uses in other rating modes or categories but which is otherwise on all fours with the rating hypothesis? And on reviews, how much weight should be placed on a rent agreed for a review clause which assumes a wider use than that to be assumed for rating?
7.8 In the same way that valuers use their skill and judgement to adjust for different uses, both the terms of the review clause and the competition in the market on a new letting fall to be considered. The weight to be given to such evidence will depend on the facts of each case.
Rents on a new letting
7.9 The fact that a potential occupier of a restaurant, for example, agrees to pay a rent at the same level as a general shop use and in competition with such uses must be evidence of the value of that property/location for restaurant; the rent was agreed in the knowledge that it would be used as a restaurant. This must carry considerable weight and in such circumstances, in most cases, the rent will not require any adjustment for use.
7.10 It may be argued that, in the absence of competition from other uses, the restaurant would not have paid as high a rent as it in fact agreed; a comparison might be drawn with imposing a restrictive covenant on use in a lease, and a reduction from the actual rent sought. Unless evidence is provided of rents paid by restaurants, on the assumption of a restaurant use only, being at a lower level than the subject rent, such an argument should be resisted; the actual occupier must have considered the rent paid to reflect the value of that property and location for restaurant use at that time.
Rents on review or lease renewal
7.11 Where the passing rent has been agreed on review, the rent will reflect the terms of the particular lease and especially the terms of the review clause. Not infrequently the reviewed rent will assume a wider use than is actually permitted under the user clause of the lease. Similarly, on renewal the rent will be on the basis of the terms of the new lease, including the use assumed for review. The weight to be given to such evidence will again depend on the facts of each case and the other evidence available.
7.12 Whilst it could be argued that both landlord and tenant are aware of the implications of the use to be assumed upon future rent reviews, the weight which could be given to such an argument will depend heavily on movements in rental values since the start of the lease. If a restaurateur agrees to a lease with reviews to a value for general shop use it could be argued that, from his perspective, the future value as a restaurant will be at least as great as that for a shop. If in the locality restaurant rents had generally moved in a similar way to shop rents this would give additional weight to such a view. If however it were shown that shop rents had risen much faster than restaurant rents since the start of the lease this would reduce the weight that should be given to a passing rent on a restaurant agreed on a review clause assuming a general shop use. There will of course be other factors involved in agreeing to the lease terms, but just because the reviewed rent passing is on the basis of a general shop use it does not mean that the rent necessarily has to be reduced to accord with the rating hypothesis. It may be that values for restaurant use have increased above those for shops.
7.13 It will depend on the facts in each case, but when considering a hereditament used for a sui generis use evidence of rents reviewed to a “wide” user should normally be regarded as of lower weight than evidence of new lettings or of reviews where the rent is restricted to that sui generis use.
7.14 Where there is no rent passing on the subject property the Lotus & Delta ranking of evidence still applies. Rents on comparable hereditaments would normally be the next best evidence, and the actual use of the hereditaments and the use(s) reflected in the rent would be factors to take into consideration. In the absence of any reliable rental evidence, assessments of comparable assessments normally form the next best evidence. In both these scenarios if, for example, one was trying to establish a link between restaurant use and shop use, the valuer would have to establish that relationship in respect of the comparables and then use his skill and judgement to translate the relationship to the circumstances of the subject property.
7.15 In some cases, where there is no rental or assessment evidence which can be used to construct a reliable valuation of the subject property, it may be necessary to have recourse to either the receipts and expenditure or the contractor’s basis methods of valuation.
Conclusion on rebus sic stantibus and the evidence
7.16 It is clear that the greater focus on the use to which a hereditament is put will require a more detailed consideration of the rental evidence and, in particular, the use reflected in the rent passing. This will especially be the case for some uses commonly found in general “bulk-class” property types where, in certain cases, it will be necessary to consider carefully the level of value for a narrower range of potential uses than at present.
8.1 The main practical effect of this decision is that valuers will have to pay greater attention to the “mode or category of occupation” limb than has generally been the case since the Lands Tribunal decision in Midland Bank. The present decision also reinforces the point that the two limbs of the rebus rule must be considered separately.
8.2 This decision will have raised the profile of what constitutes “mode or category of occupation of the hereditament”. It is important that the scope of this decision is fully appreciated and that any arguments seeking a more restrictive interpretation than justified by the decision are resisted.
8.3 Undoubtedly valuers will need to consider more carefully the use limb than perhaps has been the case in the recent past. More detailed investigation will be required into the level of rent paid by different uses, into terms of leases and in particular the use to be assumed on review.
8.4 For any further advice on this case, ‘rebus sic stantibus’ or ‘mode or category’ please contact your NSU Technical Adviser via your Team Leader.