Part 8: Appendix 2 – unlawful and ~incomplete proposals
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
INTRODUCTION
If a proposal is defective in some way, then it will be either, unlawful or incomplete.
If it is defective regarding;
-
who submitted it, eg the proposer has no interest in the property but merely managing it
-
how it was submitted eg not via the VOA portal
-
when it was submitted eg out of time
-
has a specific restriction eg MCC proposal when a check submitted and time for challenge missed
then it will be unlawful.
If it is defective regarding its content, in that it is missing statutorily required information, it will be incomplete.
Eg missing rent, evidence, grounds reasoning
This is examined in more detail below
PART 1: UNLAWFUL PROPOSALS
An unlawful proposal is one the IP is not entitled to make, or it is defective regarding its service, or there is a restriction/prohibition on its submission
If a proposal is refused as unlawful, there is no right of appeal against that decision.
An unlawful case should be cancelled in RSA and noted accordingly in remarks. Appropriate correspondence should be sent to the proposer to include reasoning for the ‘unlawful’ decision.
1.1 Proposer Status
In order to make a proposal, the proposer must be an Interested Person (‘IP’) and have a lawful interest in the property, or be a former IP.
The definition of a lawful interest is found in Reg 2(1) Appeals Regs SI 2009/2268
(a) in relation to a hereditament which forms part of the Crown Estate and is held by the Crown Estate Commissioners under their management within the meaning of section 1 of the Crown Estate Act 1961, means the Crown Estate Commissioners;
(b) in relation to any other hereditament, means—
(i) the occupier;
(ii) any other person (other than a mortgagee not in possession) having in any part of the hereditament either a legal estate or an equitable interest such as would entitle him (after the cessation of any prior interest) to possession of the hereditament or any part of it; and
(iii) any person having a qualifying connection with the occupier or a person described in (ii);
This means that the IP must be a Crown Estate Commissioner, occupier or owner (the latter includes higher interests in the property such as a head lease)
A company with a ‘qualifying connection’ is either a direct subsidiary or holding company of another
(2) A person shall be treated as having a qualifying connection with another—
(a) where both persons are companies, and—
(i) one is a subsidiary of the other, or
(ii) both are subsidiaries of the same company; or
(b) where only one person is a company, the other person (the “second person”) has such an interest in that company as would, if the second person were a company, result in its being the holding company of the other.
If the Proposer does not have one of these qualifying interests, e.g. a managing company, then they cannot make a proposal and it is unlawful.
If the Proposer was an IP, but has since left the property, then depending on when he left it can affect his rights which may be restricted under Reg 4(1) as to which grounds of challenge he may use.
Under Reg 4B(2), the proposer is required to make a request for information from the VO to commence the check process.
If at the date of that request, the proposer no longer has a legal interest in the property then he may only make a proposal on grounds relating to P&M ((4(1)(C)), RV arising from a list alteration ((4(1)(d) or against the effective date arising from a list alteration ((4(1)(f).
If at the date of that request, the proposer had a legal interest and then later left the property he is entitled to make a proposal on any ground under Reg 4(1)
Where a former IP makes a proposal he is not entitled to make because of a lack of legal interest in the property, the proposal will be unlawful.
1.2 Service of proposal
The proposal is required to be served on the VO using the VOA Portal, unless otherwise prior agreed as stated in Reg 6(2). If the proposal is not served correctly it will be unlawful.
1.3 Time limits and completed checks
A check must be completed by the same person before a proposal can be made.
Regulation 4B (2) requires that before making a proposal, the person, must request information from the VO regarding the hereditament. This means that the check must be made by the same person making the proposal.
Additionally, Reg 6(1) requires that a proposal must be made within 4 months of the date the check was completed.
A check is completed when; a notice of decision has been issued at check, or 12 months has elapsed from the date of submission of check (or a period as agreed in writing) and no such notice has been issued. (Reg 4F(3)).
Note the exception to this are external material change of circumstances (MCC) proposals, which have an extended time limit of 16 months from the date of check submission, if that is a later date than the 4-month period. (Reg 6A(2))
Therefore, if the check process is still on going and 12 months has not elapsed any proposal would be premature and unlawful.
Equally, if more than 4 months has elapsed since the notice of check decision, then the proposal will also be unlawful, with the exception of external MCC proposals to which different time limits apply.
With the exception of MCC proposals, if the IP was entitled to make a proposal, they would have to submit a new check, and then make the proposal within 4 months of the new check.
1.4 Grounds of proposal
One of the grounds specified under Reg 4(1) must be chosen in order for a lawful proposal to be made.
This is subject to the restriction on former IPs – see 1.1 above.
If a proposal is made on a ground that is not permitted the proposal will be unlawful.
Circumstances in which proposals may be made
(1) The grounds for making a proposal are—
(a) the rateable value shown in the list for a hereditament was inaccurate on the day the list was compiled;
(b) the rateable value shown in the list for a hereditament is inaccurate by reason of a material change of circumstances which occurred on or after the day on which the list was compiled;
(c) the rateable value shown in the list for a hereditament is inaccurate by reason of an amendment to the classes of plant and machinery set out in the Schedule to the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 which comes into force on or after the day on which the list was compiled;
(d) the rateable value shown in the list for a hereditament by reason of an alteration made by a VO is or has been inaccurate;
(e) the rateable value or any other information shown in the list for a hereditament is shown, by reason of a decision in relation to another hereditament of—
(i) the VTE,
(ii) a valuation tribunal, or
(iii) the Lands Tribunal, the Upper Tribunal or a court determining an appeal or application for review from the VTE, a valuation tribunal, the Lands Tribunal or the Upper Tribunal,
to be or to have been inaccurate;
(f) the day from which an alteration is shown in the list as having effect is wrong;
(g) a hereditament not shown in the list ought to be shown in that list;
(h) a hereditament shown in the list ought not to be shown in that list;
(i) the list should show that some part of a hereditament which is shown in the list is domestic property or is exempt from non-domestic rating but does not do so;
(j) the list should not show that some part of a hereditament which is shown in the list is domestic property or is exempt from non-domestic rating but does so;
(k) property which is shown in the list as more than one hereditament ought to be shown as one or more different hereditaments;
(l) property which is shown in the list as one hereditament ought to be shown as more than one hereditament;
(m) the address shown in the list for a hereditament is wrong;
(n) the description shown in the list for a hereditament is wrong; and
(o) any statement required to be made about the hereditament under section 42 of the Act has been omitted from the list.
Note – if an MCC occurred prior to the list coming into force then a compiled list proposal must be submitted as an MCC proposal can only be made for changes occurring on or after the start of the list and not before. If such an attempt is made the proposal will be unlawful.
1.5 Proposals made with multiple grounds
A proposal may only contain more than one ground if the Material Day (MD) and Effective Dates (ED) are the same for both events.
If any ground has a different MD or ED then the proposal is unlawful
1.6 Proposals which include multiple buildings
A proposal can only include more than one property if
a) it is for a split / reconstitution of the assessment or
b) the IP is connected to
all the properties,
in the same capacity and
all the buildings are within the same building or curtilage
eg a landlord submitting a proposal in respect of an office block shown in the List as 3 assessments.
If any of these requirements are not met the proposal will be unlawful.
1.7 Duplicate proposals
A proposal will be unlawful if one has already been made by the same person (or person with a qualifying connection) on the same grounds arising from the same event in respect of the same hereditament. Reg 4(3)((b)(i) and (ia)
An event is a compiled list, list alteration or MCC
1.8 Second bite of the cherry
A proposal will be unlawful if one has been made on the same facts by another IP (or former IP) and it has been considered and determined by a Tribunal (regardless of whether the earlier proposal was successful or not) Reg 4(3)(b)(ii).
1.9 List alterations and Tribunal decisions
A proposal will be unlawful where the challenged is being made on the grounds of a List alteration being inaccurate (Reg 4(1)(d)), and that alteration was giving effect to a previous proposal on the hereditament or the result of a Tribunal decision.
2.0 MCC proposals
There are additional situations where an MCC proposal will be unlawful:
1) An internal MCC proposal is submitted later than 4 months from the completion of check
2) An external MCC proposal is submitted later than 16 months from the date of submission of check
3) An external MCC proposal has been made after the 4 months from the date of completion of check and is incomplete the proposer is barred from submitting another attempt on the original check. (Reg 8 and 6A(5)). Reg 8 only permits a re-submission of a proposal within the 4 months of the date of check completion and such a proposal is outside that time limit). A fresh check and challenge may be submitted but the challenge must be within the original 16 month period of the first check. For further information see Part 8C para 5.5
4) The MCC must have occurred on or after the compiled list date. If before then it is not a lawful ground and a compiled list proposal should have been made. (Reg 4(1)(b))
5) If an earlier check has mentioned an MCC and no lawful and complete proposal was submitted within the prescribed time limits, then the proposer is barred from submitting an MCC proposal for the same MCC. He has missed his opportunity and the only recourse is to ask the VO to consider the facts and serve a notice to alter the list if appropriate. (Reg 6A(5))
6) If a proposal has been made for an MCC, eg road works, then the Proposer cannot make a second proposal at a later date in respect of the same MCC (reg 6A(3))
7) MCC proposals relating to Covid either directly or indirectly, , although not unlawful cannot have any effect due to changes in the regulations see Valuation for Rating (coronavirus) (England) Regulations 2021 SI 2021/398
3.0 Appeals
There is no right of appeal against a decision that a proposal is unlawful. The proposal should be refused and the case cancelled. A notification should be sent to the proposer explaining the reasons for refusal.
If a proposal is unlawful it does not make any difference when this is discovered, if not until appeal stage then the Tribunal should be informed and a dismissal of the appeal requested.
If a proposal has been declared unlawful, eg it has been made prematurely – it is not a substantive proposal and therefore the IP will not be barred from re -entering the CCA process and having another go. Ie not count as a go re second bite of the cherry
PART 2: INCOMPLETE CHALLENGES
(WITH REGARD TO MISSING OR UNCLEAR RENTAL INFORMATION)
1.0 Legislation Background
A proposal (Challenge) will be incomplete if matters listed under Regulation 6(4-6) Appeals Regulations (SI 2009/2268) are not included ie omitted from the challenge submission documentation. The regulations are included in page 7 of this paper. Please see Appendix A below
Regulation 8 provides that ifthe required information is missing the proposal MUST be made incomplete. The VO has no discretion in this respect and there is no appeal from this decision.
Re-submission of the proposal is allowed subject to prescribed time limits.
This paper provides additional guidance on Challenges with missing information especially in regard to rent and rent free periods.
1.1 Regulation 6 (4) –(6)
Sets out what MUST be included in the content of a proposal in order for it to be considered complete.
Reg 6(4)
a) the name, address and contact details of the proposer
b) the grounds of the proposal and details of those grounds – known as ‘the particulars of the grounds of the proposal’
c) details of the proposed alteration of the list (RV, description, deletion etc)
d) the date from which the proposed alteration should have effect, Effective Date
e) the date on which the proposal is served on the VO
f) evidence to support the grounds of the proposal, and
g) reasoning as to how that evidence supports the grounds of the proposal
1.2 Particulars of a proposal
This relates to the finer details of the grounds specified under Reg 4(1) Appeals Regulations SI 2009/2268.
For example,
a proposal challenging an RV arising from a list alteration (Reg 4(1)(d) should state:
- the date of the list alteration
- the date the notice was issued
- the alteration that was made to the list which is considered to be in error
A proposal relating to an MCC (Reg 4(1)(b) should state
- the details and nature of the MCC
- the date the MCC started
It would also useful to state the date the MCC ceased (if applicable)
1.3 Evidence to support a proposal
This cannot be just opinion evidence or general statements claiming reductions. It requires factual documentary evidence to support the grounds that are being contested and these must be attached and not just referred to. The proposal should contain all the evidence on which the proposer intends to rely
Eg copies of leases, rents, comparable evidence, photographs, plans, accounts etc
For MCCs – how this has actually affected the property
1.4 Reasoned statement
There also needs to be a clear separate statement explaining how the evidence provided relates to the details of the grounds provided.
1.5 Proposals made on the grounds of Reg 4(1)(e) against Tribunal decisions
are also required to supply the following information in addition to that above:
a) the Date of the Tribunal/Court decision
b) the name of the Tribunal/Court making the decision
c) identify the other hereditament
d) the reason why that decision is relevant to the subject property
e) the reason why the RV or other information shown in the List is wrong by reason of the decision
The submission must explain how the Tribunal decision is relevant and how it supports their case as well as how it impacts on the subject property.
2.0 Rental Details
2.1 Proposal types requiring the rent to be declared
Reg 6(6) requires the rent passing at the date of proposal to be stated for all proposal types EXCEPT:
- deletions under, Reg 4(1)(h)
- incorrect address, Reg 4(1)(m)
- incorrect description, Reg 4(1)(n)
- any other statement about the hereditament required under s42 of the Act has been omitted from the list, Reg 4(1)(o) eg partial exemption, composite etc
For any other grounds of proposal, if there is a rent passing and this has not been declared then the proposal will be incomplete.
2.2 Legal requirement re details of rent to be declared
The regulations require details of both the rent in respect of the lease, licence or easement AND any rent-free details at the time the proposal is made, to be declared. See table at 4.0 for more details
2.3 Missing information
In the 2010 and previous rating lists there have been various Upper Tribunal cases considering the implications of missing information of proposals.
In Alam v Stoyles (VO) RA 71 2017, the UT accepted a proposal was valid which the VO had considered was invalid because it failed to declare any rent. In that case, the proposal was against the 2010 list and made in the dying days of the list. The UT set down some guidance and came back to the question ‘is the VO acting lawfully’ (Appeals of Kendrick). Para 62 alluded to the point in the life of a list where such an omission may be fatal, but in the circumstances of that particular proposal that omission was not fatal.
In the recent VTE case of Hermes Property Trust v Roberts (VO) 424527635124, a completion notice issued on the 3^rd^ May specifying the 3^rd^ May as the completion date was accepted by the VTE as being substantially compliant. One of the matters considered was
‘had there been any prejudice suffered’ by the appellant. This principle was also considered in the Imperial Tobacco case.
However, for 2017 under CCA, the regulations have been amended and there is now a statutory mandate.
Invalidity with the degree of discretion it afforded in previous lists was replaced by Regulation 8 of the Appeal Regulations 2009 as amended (SI 2009/2268) requiring that content of the proposal must include the information set out in Regulation 6.
3.0 Incomplete Procedure
It is a statutory requirement that the rental and other specified information be provided and where that information has been omitted, the VO has no choice, the proposal MUST be made incomplete. This is an absolute duty regardless of whether the VO or IP consider the information relevant or not or whether either party is disadvantaged by its omission.
Once a proposal has been rejected as incomplete there is no right of appeal to the VT against that decision.
Re-submissions of a fresh proposal may be made within the remaining time balance of the original 4-month challenge window. The extended time period for re submissions runs from when the notice of refusal is served on the proposer.
The IP can have as many attempts as he wishes within the balance of that extended time limit to make a lawful and complete proposal.
However, if the proposal was in respect of an external MCC and was not received until after that 4-month period from date of completion of check, then there is no right to re-submit please see Part 8C para 5.5 for more details.
In the case of MCCs proposals no fresh check and challenge can be submitted for the same MCC, where that MCC was referred to in a Check confirmation more than 16 months ago as the IP is barred by the provisions of Reg 6A(5). In that circumstance the caseworker should consider if there is merit in the grounds raised and amend the list where appropriate.
4.0 Required Rental details
The exact nature of the rent to be declared on a proposal will vary depending on the status of the proposer, these are set out in the table below:
RENT REQUIRED
|
Capacity of Proposer |
Rent and rent free details in respect of the lease, licence or easement to be declared passing at the date of proposal |
Date to be declared |
|
|---|---|---|---|
|
1 |
Occupier |
Rent paid BY the occupier at the date of proposal |
The date that rent first became payable |
|
2 |
Owner/head lessee |
Rent paid TO the proposer at the date of proposal |
The date that rent first became payable |
|
3 |
Former IP (ie. a person who no longer has an interest in the hereditament) |
If they were an occupier and are no more: The rent paid BY them to their landlord on the last day they were an occupier |
The date that rent first became payable |
|
If they were an owner or head lessee and are no more The rent paid TO them on the last day they were an owner or head lessee |
The date that rent first became payable |
SERVICED OFFICES
|
4(i) |
Proposer = owner (landlord or Head lessee) If there is a lease or licence on the sublet part If there are only short term lettings eg < 12 months then the service provider would be deemed to be in paramount control |
Information to be provided either in subject field on submission page or within the submission itself The rent to be declared is the rent received under that agreement The rent to be declared is that paid for the head lease. Details of the fee payments in this case should be referenced in the supporting document. RSA case to be Flagged and remarks annotated ‘informal occupation query UoA’ |
The date that rent first became payable |
|
4(ii) |
Proposer service provider = occupier |
Eg vacant parts, common parts, own occupation The rent to be declared is that paid by them to the head lease or owner |
The date that rent first became payable |
|
4(iii) |
Proposer is the service provider who charges a membership fee or service charge for use of their rooms |
The users of the rooms in the building do not have a legal interest in property. The membership fee is irrelevant in these circumstances as it is really a charge for services. The Service provider is still in paramount control and therefore should be stating the rent he pays for the whole to his landlord if he doesn’t own the Freehold. Investigations should be carried out during challenge to ensure the correct Unit of Assessment has been identified – note in case remarks on RSA |
The date that the head rent first became payable to the landlord |
PROPOSALS WITH MORE THAN ONE PROPERTY QUOTED
They must have the same interest in all the units – ie the same capacity – e.g.as the landlord
And they must also be within the same building or curtilage and then they
have to declare the rent received or paid for each part
The critical thing here is the capacity in which the proposal is made and the actual facts on the ground and if they match.
|
6(i) |
Multiple property proposal (all units mentioned must be held in the same capacity and within the same building) Capacity = Owner |
The proposal must be for either just:- the vacant parts , retained parts (eg communal areas) and own use parts - Rent paid to the headlessee or owner or the proposal refers only to the sublets For sublet units – rent received |
The date that rent first became payable |
|
6(ii) |
Multiple property proposal (all units mentioned must be held in the same capacity and within the same building) Capacity = occupier |
But, if actually, some of the units are sub-let or vacant then the IP is not making the proposal in the same capacity for all units. It is therefore unlawful. If they are all held in the same capacity etc –the proposal is lawful but the rent to be declared is the rent / licence fee paid to their landlord |
The proposal will be unlawful. The date that rent first became payable |
PROPOSALS FOR SPITS & MERGERS
|
7 (i) |
RECONSTITUTION REQUESTS Proposer is the owner/occupier of the all units |
Challenges asking for splits and reconstitutions eg Unit A -> B & C If the owner then he would be expected to provide the rental details on both of the new units Further action may be needed, e.g. inspection etc |
|
7(ii) |
RECONSTITUTION REQUESTS Proposer is an occupier of only one of the new units |
Challenges asking for splits and reconstitutions eg Unit A -> B & C If the occupier of B only states the proposed assessment and rent of the unit he occupies and is unable to provide details re unit C – still treat as being complete Further action may be needed by e.g. inspection etc |
|
7(iii) |
RECONSTITUTIONS Proposer is challenging the historic assessment |
ie unit is split in a notice Unit A -> Unit B and Unit C Proposer is challenging unit A – the rent to be declared is the rent that was last paid by or to the proposer. They need to state the rent, date it became payable and any rent free periods |
5.0 Multiple properties on a single proposal
A proposal can refer to multiple properties in limited circumstances where:
a) The proposal is for a merger or reconstitution (grounds reg 4(1)(k)) or
b) The proposal is for a number of hereditaments however the following requirements must be met:
(i) The Proposer is acting in the same capacity for every hereditament
(ii) All the hereditaments are within the same building or curtilage.
For each hereditament referred to in such proposals, the rent and rent-free details should be declared
If the owner/head lessee is the proposer, then they need to declare the rent they receive on each hereditaments sublet as per (2) in the table above.
If they are the occupier of multiple units in the same building/curtilage then they have to state the rent they pay for each of the units as per (1) in the table above.
If any of the units are held in a different capacity eg a head lessee retains one floor for his own use and sublets the rest, then they are not all held in the same capacity and they cannot be included on the same proposal.
The hereditament which they occupy must be on a separate proposal stating the rent that is paid to his landlord.
The proposal with the sublets on will state the rent the head lessee receives for each of the sublets stated.
7.0 EXAMPLES
1) The head lessee makes a proposal on a hereditament he pays a rent to his landlord of £10,000 pa and sublets the premises for £12,000.pa
The rent to be declared
The head lessee is not the occupier of the hereditament
The rent to be declared on the proposal is the rent he receives for the hereditament ie £12,000pa.
2) The proposer is an occupier who rents a shop with living accommodation (LA) for £15,000pa.
The hereditament is the whole, ie shop and LA, it is a composite property.
The proposal refers to the shop.
The rent to be declared
is the rent paid to the landlord for the whole hereditament, £15,000pa as per Reg 6(6) (a)
The rent should not be apportioned between the domestic and non-domestic parts however it would be helpful if the occupier stated in his submission that the rent includes the LA.
3) The proposer is an occupier who rents a shop with offices above for £12,000pa.
The occupier sublets the offices for £3,500pa. The offices have a separate hereditament in the rating list.
The proposal is in respect of the shop hereditament.
The rent to be declared is the rent paid by the occupier to his landlord ie £12,000 pa as per Reg 6(6)(b). This rent should not be apportioned between the parts. However, it would be helpful if the occupier stated in his submission document that the rent included other property.
4) The proposer rents and occupies a factory that comprises 3 adjoining units that form one hereditament in one assessment.
He has 3 leases, one in respect of each unit.
The rent to be declared
He will have to declare all 3 rents that he pays for each unit on the proposal as per Reg 6(6)(a)
As the VOA portal does not allow more than one rent to be stated then ideally he could declare the total rent paid and give the breakdown in his submission or alternatively state one of the rents and then give full details of the other payments in his written submission. Either approach would be acceptable provided the full details are given somewhere in the documentation provided.
5) A head lessee of a 3-storey office block makes a proposal including the 3 properties for an MCC. Each floor is sublet to a separate party and each floor is the subject of a separate assessment.
As he is acting in the same capacity for every hereditament they can be included on the same proposal.
The rent to be declared
The rental information to be declared is the rent he receives for each of the sublet units.
Again he may give the total in the portal and a breakdown in his submission or put one rent on the portal and full details in his submission to meet the requirements of the regulations.
6) The proposer is the head lessee of a 3 Storey office block. 2 floors are sublet and one he retains for his own use.
Each floor is the subject of a separate assessment.
The proposal refers to an MCC affecting all 3 floors.
Issue
In this case the head lessee is not acting in the same capacity for the 3 hereditaments referred to although they are within the same building.
He is the occupier in respect of the vacant parts and the parts he occupies but the owner in respect of the parts sublet.
He therefore fails to meet the requirements of Reg 6)(7) and the proposal should be rejected as unlawful.
Correct approach
He should make a proposal to include the 2 sublet floors stating the rent he receives for each unit (Reg 6(6)(b) and on a separate proposal the rent for the unit that he is in occupation of. On the latter proposal he would declare the whole rent he pays in his lease to his landlord. This rent should not be apportioned. (Reg 6(6)(a).
However, it would be useful if within the documentation it is explained that the rent paid includes other property.
7) A head lessee makes a proposal to split a hereditament that he has sublet in 2 parts.
Rent to be declared
The headless is not the occupier of the hereditament. There are now 2 new occupiers and therefore the head lessee in his proposal should give details of both of those lettings in his proposal as per Reg 6(6)(b).
8) A proposal was made on 1/1/21 by a person who was the occupier of a shop hereditament from 1/1/17 to 31/12/20, the rent set at the start of his occupation was £12,000pa there was a review in 1/1/20 to £15,000pa. The VO increased the assessment in the list with effect from 1/9/17 and the previous tenant wants to challenge this alteration. The current rent on the property paid by the new occupier is £25,000pa
Rent to be declared
The Person is a former IP who has restricted grounds on which to make a proposal, a RV resulting from a List alteration during his occupancy being one of them.
The rent he has to declare on the proposal is the rent that was being paid when he left the property ie £15,000pa (as per reg 6(6)(c) and the date that is became payable was 1/1/20.
9) The agreement from the SOOP ( Serviced Office Operator ) is not a lease/easement or licence within the meaning of 6(6), it is something else – club membership. Some of the occupations in London are subject to gold/silver/bronze levels of membership.
In this scenario, unless there is evidence to the contrary, then the service provider remains in paramount control with exclusive occupation etc and therefore there is only a single hereditament of which the provider is the rateable occupier. The rent to be quoted on the proposal will be the rent paid by him to the owner or superior interest.
10) A user has asked for his unit in a multi-office complex to be separately assessed, it is currently part of a much larger single hereditament in the list. He currently pays a monthly fee on a rolling monthly basis.
The regulation asks for the amount payable each year - there is no certainty that the agreement will continue for a year (normally month to month)
It will depend on the terms of the agreement and length of time in occupation by the user as to whether there should be a separate hereditament. However, for the purposes of Regulation 6(6) if such a proposer has declared the rent he pays for his unit on his proposal that will meet the requirements of legislation.
The caseworker in this scenario will have to satisfy themselves that there should be a separate unit and amend the list accordingly having investigated fully the terms of the agreement, exclusivity and length of occupation,
APPENDIX A: LEGISLATION
Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (SI 2009/2268)Part 2 Alteration of Local Lists
6 Proposals: general
[(1) Subject to regulation 6A, a proposal in relation to a hereditament may only be made within the period of 4 months beginning with the date on which a check was completed in relation to the hereditament.
(2) A proposal must be made by serving it on the VO—
(a) using the VO’s electronic portal; or
(b) in another manner agreed with the VO.
(3) The date a proposal is made is the date on which it is served on the VO.
(4) A proposal must include—
(a) the name, address and contact details of the proposer;
(b) the grounds of the proposal including the particulars on which each of the grounds is based (“particulars of the grounds of the proposal”); (ie details of the ground)
(c) details of the proposed alteration of the list;
(d) the date from which the proposer asserts the proposed alteration should have effect;
(e) the date on which the proposal is served on the VO;
(f) evidence to support the grounds of the proposal; and
(g) a statement as to how the evidence supports the grounds of the proposal.
(5) A proposal in relation to a hereditament (“the hereditament”) made on the ground set out in regulation 4(1)(e) (against Tribunal Decisions) must also include—
(a) the date of the decision made in relation to another hereditament (“the decision”);
(b) the name of the tribunal or court which made the decision;
(c) information to identify the other hereditament;
(d) the reasons the proposer believes that the decision is relevant to the rateable value or other information shown in the list for the hereditament; and
(e) the reasons the proposer believes that, by reason of the decision, the rateable value or other information shown in the list for the hereditament is inaccurate.
(6) If a proposal in relation to a hereditament is made on one or more of the grounds set out in regulation 4(1)(a) to (g) and (i) to (l) and the hereditament is occupied under a lease, easement or licence to occupy [(or, where sub-paragraph (c) applies, was so occupied)], the proposal must also include—
(a) where the proposer is the occupier, the amount payable each year by the proposer, as at the date the proposal is made, in respect of the lease, easement or licence to occupy, the date at which that amount first became payable and details of any rent-free periods.
(b) where the proposer is not the occupier [but is an IP in relation to that hereditament], the amount payable each year to the proposer, as at the date the proposal is made, in respect of the lease, easement or licence to occupy, the date at which that amount first became payable and details of any rent-free periods[; or
(c) where the proposer is not an IP in relation to that hereditament, the amount that was payable each year by or to the proposer (as the case may be), as at the last day on which the proposer was such an IP, in respect of the lease, easement or licence to occupy, the date on which that amount first became payable and details of any rent-free periods].
(7) A proposal may deal with more than one hereditament only—
(a) if it is made on the ground set out in regulation 4(1)(k) or (l); or
(b) where the person making the proposal does so in the same capacity in relation to each hereditament and each hereditament is within the same building or the same curtilage.
8 Incomplete proposals
[(1) The VO must refuse a proposal (“an incomplete proposal”) which does not include the matters specified in—
(a) regulation 6(4); and
(b) if applicable, regulation 6(5) and (6).
(2) If the VO refuses an incomplete proposal, it must serve on the proposer a notice of refusal specifying—
(a) the information which is missing; and
(b) the date the notice is served.
(3) If an incomplete proposal in relation to a hereditament is refused, the proposer may make a further proposal within the period of 4 months beginning with the date on which a check was completed in relation to the hereditament.
(4) In calculating the period in paragraph (3), the days beginning with the date on which the incomplete proposal was made and ending with the date on which the notice of refusal was served are to be ignored.
(5) Paragraph (4) does not apply where a second or subsequent notice of refusal is served in relation to the further proposal.]