Part 9: Rental evidence: Part 9B: Reg 17 & 31s and use in Tribunals
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
Executive Summary
Regulation 17 Notices (England) and Regulation 31 Notices (Wales), using rental evidence at Tribunal, using stamp duty evidence, service of notice, form to use, information required in a Reg 17 / 31 notice
Reg 17/ 31 Hereditaments to be specified in notice, Hereditaments outside the Statutory VO area, rights of other parties - counter-notice under Reg 17(6) England or Reg 31(4) Wales Parties requesting to see rents on other specified hereditaments, viewing hardcopy documents, documents not held in hardcopy, viewing evidence outside the VO area. Documents containing information to be produced, reg 17 counter notice, verbal requests, misuse of Information, rental evidence at UT
Relevant Legislation & Practice Statements
(i) Paragraph 5 of Schedule 9 to the Local Government Act 1988 (request of information)
(ii) Commissioners for Revenue and Customs Act 2005
(iii) England - Reg 17, The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (SI 2009/2269)
(iv) The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) (Amendment) Regulations 2017’ (SI 2017/156)
(v) Wales - Reg 31, Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758 W63)
(vi) Consolidated Practice statement - Valuation Tribunal Service
1.1 Introduction
This section covers the use of in proceedings at Valuation Tribunals and the Lands Chamber of the Upper Tribunal which has been derived from Forms of Return FORs or other documents and SDLTs.
Formal procedures are provided for in the legislation but the existence of the covering legislation permits discussion during negotiations of rental evidence derived from FORs and SDLTs.
The VO and other parties may agree the rental evidence prior to the service of the Reg 17 notice (England) or Reg 31 notice (Wales).
In the case of Upper Tribunal appeals it is expected that the expert witnesses will have prior agreed all facts relating to comparable evidence and thereby by inference the rental evidence to be included.
1.2 Statutory Provisions
Paragraph 5 of Schedule 9 to the Local Government Act 1988 enables a VO to serve a notice on a person who is an owner or occupier of a hereditament requesting him to supply such information as is required by the VO for the purpose of carrying out the VOs statutory functions imposed by the Act.
1.3 Use of Stamp Duty Land Tax Evidence
Sect 17 of the [Commissioners for Revenue and Customs Act 2005 enables the VO/LO to use SDLT information in relation to rating and council tax matters;
(1) Information acquired by the Revenue and Customs in connection with a function may be used by them in connection with any other function.
(3) In subsection (1) “the Revenue and Customs” means—
(f)the Commissioners of Inland Revenue (or any committee or staff of theirs or anyone acting on their behalf)
1.4 Confidentiality
Sect 18 of the Commissioners for Revenue and Customs Act 2005
(1) Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.
(2) But subsection (1) does not apply to a disclosure (a)which
(i) is made for the purposes of a function of the Revenue and Customs, and\
(ii) does not contravene any restriction imposed by the Commissioners,
2.1 Rental Evidence prior to a hearing
2017 ENGLAND
The CCA procedures set out the requirements for exchange and discussion of evidence during the Challenge stage as new evidence at Appeal stage will only be permitted in limited circumstances (see section 6 Proposals- 2017 appeals England). Reg 17 notices should be issued during the Challenge stage.
2010 List (and earlier) ENGLAND & (all lists) WALES
Appellants or their representatives should be given the opportunity to fully explain their grounds for believing the assessment to be incorrect during the discussion period.
Where professional representatives or ratepayers make an appropriate effort to discuss the proposal before target date then proportionate rental evidence in support of the VO’s view may be disclosed and discussed prior to the service of a Regulation 17/ Regulation 31 notice.
Rental evidence should no longer be disclosed as a matter of course at the start of the discussion period.
Upper Tribunal hearings
Where an appeal is made to the Lands Chamber of the Upper Tribunal it is usual for both parties to the appeal to agree the details of the rental evidence to be spoken to before the hearing
2.2 Reg 17 Requirements & Notice -England
General
Regulation 17 of [The Valuation Tribunal for England (Council Tax and Rating\Appeals) (Procedure) Regulations 2009 (SI 2009/2269)
enables the VO to introduce to the tribunal proceedings information supplied in pursuance of paragraph 5 of Schedule 9 to the Local Government Act 1988 [FORs} and any land transaction supplied via a SDLT provided notice of this has been given to the Appellant. (Reg 17(3)(b))
Regulation 17(4)(a) sets out the procedure for so doing and states that 2 weeks notice must be given by the VO of his/her intention to refer to rental evidence at VT.
Rating list- 2017 England
Under the CCA process all rental evidence should have been disclosed and exchanged prior to the decision notice being issued and it should be Reg 17 compliant. ie the requirements for Reg 17 Notice should have been met before the issue of the Decision Notice.
Once an appeal has been submitted to the VTE then the VO has 4 weeks to serve a notice on the Tribunal and Appellant if it is believed that the correct evidence or information provided under Reg 9 (NDR (Alteration of List and Appeals)(England) (Amendment) Regulations 2017 have not been complied with. (See Section 6 Part 8 CCA) This would include any errors or missing data in respect of rental evidence included in the Decision Notice.
Rating Lists before 2017 England
Whilst the statutory requirement is 2 weeks the Valuation Tribunal England [VTE] have directed in its Consolidate Practice statement PS2(b) - that re Regulation 17(3) evidence- that 8 weeks notice must be given before a hearing where Reg 17 rental evidence is to be relied on. Although the statutory requirement is 2 weeks, the VO should follow the VTE guidance of 8 weeks notice.
Regulation 17(4) provides that the VO must ensure that:-
(a) not less than two weeks prior to the hearing serve notice or every other party to the proceedings specifying the information to be used and the hereditament(s) to which it relates; and
(b) any party on whom such a notice is served and who has given the VO at least 24 hours notice of his intention to do so, has been permitted by the VO to inspect and take extracts (not photocopies) from the documents or other media on which the information is held.
The Regulation 17 notice served must provide in detail the nature of the evidence the VO intends to adduce.
As the parties have the right to inspect any document to which reference is made in the notice it will not be necessary to quote every entry verbatim but details, at least in summary form, of each of the statements of fact on which the VO intends to rely should be given.
2.3 Reg 31 Requirements - Wales
Regulation 31 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758 W63) again restricts the use of paragraph 5 of Schedule 9 to the Local Government Act 1988 [FORs} evidence unless proper notice has been given, in Wales this is 3 weeks before the Tribunal hearing date.
Note there is no requirement in Wales to give notice of SDLT information to be used in connection with a rating appeal.
In order that documents containing information may be used as evidence, Regulation 31(3) provides that the VO must ensure that:-
(a) not less than 3 weeks in Wales prior to the hearing serve notice or every other party to the proceedings specifying the information to be used and the hereditament(s) to which it relates; and
(b) any party on whom such a notice is served and who has given the VO at least 24 hours notice of his intention to do so, has been permitted by the VO to inspect and take extracts (not photocopies) from the documents or other media on which the information is held.
The Regulation 31 notice served must provide in detail the nature of the evidence the VO intends to adduce.
As the parties have the right to inspect any document to which reference is made in the notice (Reg 31(3)(c)) it will not be necessary to quote every entry verbatim but details, at least in summary form, of each of the statements of fact on which the VO intends to rely should be given.
2.4 Information which may be used as evidence
Information supplied to VO by BAs
By virtue of Regulation 17 (3)(a) in England and Regulation 31(1) in Wales information supplied in pursuance of Regulation 24 (SI 2009/2268) England and Regulation 42 (2005/758 W63) Wales, which relates to information to be supplied to VOs by billing authorities, or Para 5 of Schedule 9 to LGFA 1988 is admissible as evidence in valuation proceedings.
Trade information
The regulations do not preclude the use of information supplied in respect of hereditaments valued having regard to their trading potential as was the position under previous legislation.
VOs are reminded that in order to facilitate obtaining information various Codes of Practice have been entered into (e.g. Public Houses). The importance of not disclosing sensitive trade information other than in accordance with the codes cannot be over emphasized, and the Regulation 17/ Regulation 31 procedure should only be used in the last resort.
When dealing with appeals in respect of hereditaments valued having regard to their trading potential notice must not be served as a matter of course. Traders regard trading information as sensitive and VOs should respect this and only serve notice when it is essential because negotiations have been exhausted and the VO considers it imperative to produce evidence of rent/trade to support the valuation.
The decision to issue a Regulation 17/ Regulation 31 notice quoting trading information should be made after consultation with the facilitator of the relevant class co-ordination team.
2.5 Documents to be treated as containing information
Information supplied in pursuance of Para 5 of Schedule 9 to the LGFA 1988 can be in the form of:-
(a) FORs designed for the purpose and containing a reference to the Act which was operative at the time the forms were issued
(b) a reply in writing to the VO together with a copy of the VOs letter, provided the request for information contains a reference to Para 5 of Schedule 9 to the LGFA 1988 (or similar previous enactment if appropriate) together with a statement of the purposes for which the information is requested.
(c) a letter to the VO referring to a FOR recently made and giving additional information in relation to that specific return.
In cases of doubt the VO should submit a report outlining the circumstances and enclosing copy documents to CEO (Rating) through the Technical Advisor together with a copy to the VO
2.6 General Policy - Use of Rental Evidence
The decision to use documents containing information under Regulation 17/ Regulation 31 rests with the VO and, unless, FORs or other documents are introduced into the proceedings by the VO other parties have no rights under the regulation. No action should be taken which might lead to a suggestion that VOs are taking unfair advantage of this provision.
During a post revaluation period the use of rental evidence will generally be necessary even after some assessments have been subject to Valuation Tribunal decisions. Once levels have been firmly established and accepted by the VT the VO may be able to rely upon comparisons of assessments without having to resubmit rental evidence to the VT in individual cases.
Appeals to the Lands Chamber of the Upper Tribunal are de-novo hearings and it will usually be necessary to introduce rental evidence before the Tribunal, even where reliance was placed on comparisons before the VT for a much longer post revaluation period.
3.1 Formal Documents
Notices served by and on the VO under Regulation 17 / Regulation 31 should be treated as formal documents and should be available for inspection by the VT at the hearing.
3.2 Regulation 17 Notices England
If rental evidence derived from a form of return is to be used, the “parties” must be notified of that intention not less than 2 weeks before the date of hearing, (Reg 17 (3)(4)(a)).
Under the CCA process, the Reg 17 Notice should be incorporated into the exchange of evidence during the Challenge period and before the issue of any Decision Notice.
Regulation 17 also enables the VTE to give directions as to which issues require evidence, the nature of the evidence required and whether the parties are permitted or required to give expert evidence. (Reg 17(1)).
The VTE may admit evidence or exclude evidence where it was not provided within the time allowed by a direction.(Reg 17(2))
It is good practice for the Regulation 17 Notice to identify:
(i) The document (s) which contain the information
(ii) The hereditament (s) to which the document (s) relate
(iii) The name and address of the person providing the information
(iv) A summary of the lease terms including the rent, dates of rent reviews and the repairing obligations.
3.3 Regulation 31 Notices Wales
If rental evidence derived from a form of return is to be used, the “parties” must be notified of that intention not less than 3 weeks before the date of hearing. (Reg 31(3)(a))
The Regulation 31 Notice requires more information than in the past and should be served as early as possible in the settlement process.
The Regulation 31 Notice (Reg 31(3)(b)) must identify :
(i) The document (s) which contain the information
(ii) The hereditament (s) to which the document (s) relate
(iii) The name and address of the person providing the information
(iv) A summary of the lease terms including the rent, dates of rent reviews and the repairing obligations.
3.4 Service of Notices
England
Reg 22 The Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009 SI 2009/2268 applies in relation to any notice authorised or required to be given for the purposes of Reg 17
Wales
Reg 40 The Non-Domestic Rating (Alteration of Lists and Appeals (Wales) 2005 SI 2005/758 W63.
Service
Reg 22 [England] and reg 40 [Wales] provides that a notice may be given or served by:
(a)
(i) Delivering it to the person on whom it is to be served
(ii) Delivering it to any authorised agent.
(b) by send it to the person/agent by electronic communication
(c) Leaving it at, or forwarding it by post to:
(i) the usual or last known place of business of that person, or
(ii) in the case of a company, its registered office, or
(iii) the usual or last known place of business or registered office of any authorised agent
(d) delivering it to some person on the premises to which it relates or, if there is no person on the premises to whom it can be so delivered, fixing it to some conspicuous part of the premises.
(e) Additionally, where a hereditament to which the notice relates is a place of business of the person on whom it is to be served, by leaving it at, or forwarding it by post addressed to that person at, that place of business.
Reg 22(4) Any notice to be served on a VO may be served by:
(a) Addressing the notice to the valuation officer for the area in question, without further description (i.e. there is no need to use the GVO’s name or personal title) and
(b) Delivering it or sending it to the VO’s office by post or electronic communication.
Council Tax Manual Section 3 Appendix 3.6 details the procedures concerning service of documents by post. This contains the Interpretation and Practice Direction from the High Court.
Service of a document is to be taken as:
(a) In the case of first class mail, on the second working day after posting, (i.e. posted a minimum of 2 weeks + 3 working days before VT date)
(b) In the case of second-class mail, on the fourth working day after posting. (i.e. posted a minimum of 2 weeks + 5 working days before VT date).
Working days are Monday to Friday, excluding any bank holiday.
3.5 Notice under Regulation 17 / Regulation 31 -where VO legally represented
Where the VO is to be legally represented before the VT, any notice under Regulation 17 / Regulation 31 will be signed and served by the HMRC Solicitor managing the case.
3.6 Persons to whom the Valuation Officer’s Notice is to be given
Notice by the VO under Reg 17 / Reg 31 in respect of an appeal to the VT must be given to every other party to the proceedings. (Reg 17(4)(a))
Reg 17 (4)(a) and Reg 31(3)(a) also carries the requirement to notify “every other party to the proceedings”. The following constitute the potential parties to an appeal whose agreement must be gained prior to an appeal being withdrawn or agreed:
(i) The person who made the proposal
(ii) The occupier at the date when the proposal was made
(iii) The ratepayer at the date of agreement
(iv) Any interested person or relevant authority:
(a) Who at the time the proposal was made would have been able to serve the proposal
(b) Who within 2 months of the proposal having been received by the VO notified the VO in writing that they wished to be a party to the proceedings in respect of the proposal
(v) Any other person who has been a ratepayer in relation to the hereditament since the proposal was made and who has notified the valuation officer in writing before the hearing that he or she wishes to be a party to the appeal
In the majority of cases a Reg 17 / Reg 31 notice will only need to be served on the person who made the proposal.
Additional - For 2010 and earlier appeals (England) and 2017 and earlier appeals Wales:
If there is an intention to use comparable evidence or other information at the VT hearing, caseworkers must adhere to the VOA Charter.
This creates an obligation to provide the other parties with a copy of the written evidence that is going to be used at least 7 days before the hearing. The Charter does however stipulate that this will only be possible where the parties have given the VO the information necessary to conclude negotiations in sufficient time.
Inspection of the documents or on screen data must be in person and arranged at a reasonable time around normal Valuation Office opening times.
The information must be inspected at the relevant statutory VO’s office. An appointment may be made to visit any other of the particular VO’s offices in which the appeal hereditament is situated but cannot be at another VO’s location.
3.7 Forms of Notice
Forms VO 7109, Notice of Information to be used in Evidence and VO 7109A Continuation Sheet have been designed for use by the Valuation Officer in giving notice under Regulation 17/31.
The words “used in evidence” in the forms should be taken as an undertaking by the Valuation Officer to produce at the hearing all the returns specified.
Provision is made in the forms for the Valuation Officer to state the number of hereditaments to which the specified documents relate. In this connection:-
(a) on a document which refers to more than one hereditament (eg a return giving details in respect of separately assessed sub-lettings, or a schedule type of document completed by an owner), each entry is a return in itself and consequently only those hereditaments to which reference is to be made should be counted;
(b) the number of hereditaments should be ascertained in accordance with the rating lists at the date of the notice.
Notices will usually be prepared and printed from DSP for more information please see the Defence Support Package (DSP) Homepage.
If at the VT hearing any person to whom notice has been given challenges the validity of the notice the VO should seek an adjournment and refer the matter, together with full details, to CEO (PSD) via the TA.
3.8 The hereditaments to be specified
Subject property
When a notice is to be issued under Reg 17/31 and a document is held for the hereditament which is the subject of the appeal, that hereditament should always be specified in the notice.
Selection of hereditaments
When considering which hereditaments to specify in the notice, the Valuation Officer should not select only those hereditaments which provide rental evidence most favourable to his/her case. The notice should include all relevant rental evidence.
The VO at the hearing will need to explain why greater weight should be given to some rents, and these lead to the VO’s valuation conclusion, and why other evidence although pertinent to the appeal is not as relevant to the valuation.
For consideration and weighting of evidence see
Lotus and Delta v Culverwell (VO) & Leicester City Council (1976) 239 EG 287 and Specialeyes v Felgate (VO) RA 387 1992 (pre and post AVD evidence).
Hereditaments outside the Statutory VO area
Special care should be taken with regard to the selection of hereditaments outside the area within which the particular VO is responsible for the rating lists since Regulation 17(6)(a) / Regulation 31(4)(a) does not give the ratepayer the right to ask for returns not in the possession of the Valuation Officer. The aim must be therefore always to give the VT or Lands Chamber of the Upper Tribunal a fair picture of the relevant rental evidence
The introduction by a Valuation Officer of rented hereditaments situated outside the valuation area, should be restricted to essential cases. Such introduction of rental evidence over a wider area may be made, having regard to the class of property concerned in the appeal and the other circumstances of the case (eg the situation of the appeal hereditament close to another VO’s boundary or the lack of similar rented properties in the locality).
Photocopies of FOR documents, certified by the VO who has the originals in his/her possession can be utilized for this purpose should the appellant wish to see a hardcopy record. Otherwise the screen record or a PDF of the scanned document can be shown at any office of the VO responsible for the appealed hereditament.
Alternatively the party may wish to travel to the office where the FOR is located to see the original if the above options are not acceptable.
Selection of evidence
The aim must be therefore always to give the VT or Lands Chamber of the Upper Tribunal a fair picture of the relevant rental evidence if it is being relied on.
In some cases, it will often suffice to produce a reasonable sample of the available rents, provided the sample is representative of the whole. When it is appropriate to refer only to hereditaments in the same terrace or parade as the hereditament under appeal, the Valuation Officer may decide to produce all the available rents.
For hereditaments of a non-repetitive type, rental evidence from a much wider field may have to be selected.
It will always be a matter for local determination to decide the number of rent returns to be produced. As a general guide a proportional response is required to the evidence provided by the proposer, however in some circumstances it may be necessary to increase this number to present a fair picture of the position. It should, however, be remembered that the other party has the right to refer to an equal number of other hereditaments.
Rental evidence in support of shop valuations in main shopping thoroughfares may have to be confined to each part or section of the street considered to have a separate standard of rental value for rating purposes. Nevertheless, it may be appropriate to include rents of other sections of the street where it is considered that such evidence is relevant to the case under appeal and where it is thought likely to assist the Valuation Tribunal or Lands Chamber of the Upper Tribunal in its determination.
Photocopies of FOR documents, certified by the VO who has the originals in his/her possession can be utilised for this purpose should the appellant wish to see a hardcopy record. Otherwise the screen record or a PDF of the scanned document can be shown at any office of the VO responsible for the appealed hereditament.
Alternatively the party may wish to travel to the office where the FOR is located to see the original if the above options are not acceptable
3.9 Documents to be specified Although it will usually be sufficient to specify only the latest admissible document relating to a particular hereditament, the Valuation Officer may also specify earlier documents.
Where an earlier document differs materially from the latest one but refers to the same tenancy (or period of tenancy), so that there appears to be a mistake in one of them, then the earlier document must be specified also.
The valuer will need to point out the apparent discrepancy to the VT or Lands Chamber and saying upon which return he/she is relying.
It should be borne in mind that, subject to admissibility, the Valuation Officer is not precluded from relying on a document completed after the compilation of the rating list.
Reference should however be made to the case of Smith v Moore (VO) 1972 RA 269 LVC/220/1970 before reliance is placed on the admissibility or relevance of documents received after the date of a VO alteration or to an IP proposal particularly if they are needed as evidence to confirm a “trend” reflected in the valuation.
Where the case is under National Specialist control, the selection of documents will be made in consultation with the CEO case manager.
3.10 Rights of other parties - Counter-notice under Reg 17(6) England or Reg 31(4) Wales
Parties requesting to see rents on other specified hereditaments
In addition to the right of inspection and making copies (only) of the documents to be used by the Valuation Officer any person to whom notice is given by the Valuation Officer (under Regulation 17(4) / Regulation 31 (3))
may give notice to the VO under Regulation 17(6) / Regulation 31 (4)
specifying other hereditaments as being hereditaments which are comparable in character or are otherwise relevant to the person’s case, and requiring the Valuation Officer to permit access to information on those hereditament’s that is relevant to the appeal proceedings.
The number of other hereditaments requested in the counter notice shall not exceed 4 or if greater, the number specified in the original Reg 17/ Reg 31 notice (Reg 17((7)), Reg 31(5))
Notice to be given
The person wishing to inspect the documents must give at least 24 hours notice and specify which of the documents they wish to inspect. (Reg 17 (4)(b) England) & (Reg 31(3)(c) Wales)
If the person gives notice under reg 17(6) [England] or reg 31(4) [Wales] that they wish to inspect other comparable documents they must also give at least 24 hours notice.
The 24 hour notice period is statutory, but is ‘…not less than 24 hours’ notice…’ and the inspection has to be permitted ‘at any reasonable time’. What is ‘reasonable’ will depend on the circumstances – a request made at 6pm on a Thursday may not be in time to inspect on Friday as the 24 hours would expire after close of business for the Friday and may have to wait until the following Monday. A request to inspect a large number of hardcopy FORs held in different locations may ned a longer period to assemble the documents etc.
Redaction may be appropriate if the FOR contains extraneous material wholly unrelated to the information to be relied on or is personally sensitive
The person may:-
(a) Inspect the documents or other media in or on which such information is held
(b) Make a copy of information from the documents
There is a statutory prohibition against providing or taking a photograph of the documents
(Reg 17 (4)(b)(ii) England) & (Reg 31(3)(c) Wales)
The recipients also have the right to serve a counter notice at any time prior to the VT hearing allowing them to view, copy and require to be produced at the VT, documents relating to the other hereditaments specified in the counter notice. The hereditaments specified in the counter notice need to be “comparable in character or otherwise relevant to that person’s case”.
The number of hereditaments specified in the counter notice is limited to either 4 or a number equal to the number of hereditaments specified in the VO’s Regulation 31 notice.
It is the number of hereditaments that is restricted and not the number of FORs that may be attached to those properties.
Number of hereditaments and FORs that can be viewed
This right is limited in that the number of hereditaments specified in the notice must not exceed 4 or if greater the number of hereditaments specified in the Valuation Officer’s notice. (Reg 17 (7) England) & (Reg 31(5) Wales)
However, the person is entitled to inspect all relevant documents held in relation to those hereditaments so, for example, if the VO notice relates to 1 FOR in respect of each of 4 hereditaments (a total of 4 FORs) and the VO holds 2 FORs in respect of each of the 4 comparable hereditaments in the person’s counter-request (a total of 8 FORs), the person is entitled to inspect all 8 of those documents as well as the 4 in the VO’s notice;
Notice to be in writing
The Valuation Officer should require notice given for the purposes of Regulation 17(6) / Regulation 31(4) to be in writing. In cases of ambiguity, the other party should be informed by letter of the action which the Valuation Officer assumes the notice to require.
Hardcopy documents
Where the FOR is held in hardcopy at the location where the inspection is to take place the person may be shown the document and is permitted to make notes from it.
A member of the VO staff must supervise the visitor and remain present at all times that documents are being inspected;
Scanning, photocopying or photographing (e.g. with a camera or mobile phone) documents is not to be permitted; Notes may be made in manuscript or be typed into a laptop or be recorded into a dictaphone etc;
Where the hardcopy is not held at the relevant location, or if the person is content to view the information on-screen, a member of staff may retrieve the relevant information from the database and allow the person to view the screen. Care must be taken to only permit sight of the relevant screens.
Alternatively, printouts from the database may be provided in the same way as for hardcopy original documents. The person is only permitted to take notes from the printouts and must not be permitted to take the printouts away with them.
Viewing evidence outside the VO area
The ratepayer’s right under Regulation 17(6) / Regulation 31(4) does not extend to inspection or production of returns relating to hereditaments outside the valuation area and which are thus not “in the possession of” the Valuation Officer.
Nevertheless, with respect to hereditaments where a Valuation Officer has included in his own notice properties outside the valuation area he should afford the ratepayer to whom he has given such a notice a similar right; this right need not be limited to a number of “outside” hereditaments equal to the number of “outside” hereditaments quoted by the Valuation Officer
Where it is necessary to quote evidence covered by two VOs, it will not be necessary to insist that a visit is made to each VO. A photocopy of the FOR certified by the Valuation Officer to be a true record may be made available for inspection at the other VO’s office or alternatively a scanned record or screen record may be shown to the Appellant.
Alternatively the Appellant may make an appointment to view the original documentation if they wish to do so at the office where it is held.
Documents not held in hardcopy
If the required documents are not maintained in hardcopy form then the requirement to produce it is satisfied if a print-out, photographic image or other reproduction of the document which has been obtained from the storage medium used is made available for proceedings and certified by the VO (Reg 17(10) England) & (Reg 31(9) Wales).
3.11 Documents containing information to be produced
Counter Notice
The VO must produce, if requested to do so, all the documents containing information in his or her possession which relate to each hereditament specified in a, Reg 17(6) England /Reg 31(4) Wales, counter-notice.
In practice, ratepayers will usually be interested only in the latest admissible documents, but if the VO is asked to produce documents at a hearing, he or she should have with them all documents which are in their possession in respect of the particular hereditaments.
If the counter-notice is received too close to the hearing for arrangements to be made for the inspection and making 6 of copies if required, the VO should take to the hearing all the documents to which the counter-notice relates and should explain the circumstances to the VT at the commencement of the proceedings.
The VO should not treat any counter-notice received before the date of hearing as too late for these purposes if within reason. Otherwise the VO’s only course will be to request a postponement of the hearing.
Verbal requests
When the VO is informed verbally under Regulation 17(6)/Regulation 31(4) of the document/returns which are required to be produced at the hearing, the VO should, to avoid any dispute, state in writing the documents which will be produced.
If requested, the VO should produce any earlier document relating to a hereditament specified in the VO’s notice, even where such earlier return has not been specified. Such a request should be treated by the VO as being independent of the ratepayer’s right under Regulation 17(6)/Regulation 31(4)) to specify other hereditaments.
Regulation 17(6)(a) / Regulation 31(4) (a) refers to documents “in the possession of the Valuation Officer”. VOs should act reasonably in the interpretation of these words and the phrase is to be considered in relation to:-
‘Hereditaments in the same valuation area as the hereditament which is the subject of an appeal.’
No documents held on requested hereditament
If the VO has no document in his or her possession for a hereditament specified in a counter-notice and which is in the same valuation area as the appeal hereditament, the VO should so inform the other party in writing immediately.
There is no power for the other party to substitute another hereditament for one specified in a counter-notice, either because the information disclosed does not assist the party’s case or there is no document.
VO refusal to produce documents
The VO should not decline to produce for inspection any document held which relates to a hereditament not in the same charging authority area as the appeal hereditament.
Hereditaments in other valuation areas
A VO should refuse to bring into his or her “possession” any form of return concerning a hereditament outside the valuation area, unless such a hereditament has been included in the VO’s own notice
Regulation 17(8)/Regulation 31(6) however does not permit any person who has served a counter notice to inspect or copy, or require the VO to produce any document, that contains information which does not constitute direct evidence of the rent payable where such information is not reasonably required for the purposes of the relevant proceedings.
The inspection, copying or production of receipts information, trading accounts, and costs relating to specialised buildings or plant and machinery is therefore precluded unless the hereditament cited is comparable to the appeal hereditament or the information is otherwise reasonably required.
An example of this may arise in an appeal against the assessment of a shop unit where a similar shop unit, used as a wine bar, is cited as being a hereditament comparable in character to that person’s case.
Different FORs will have been served on the occupier of the shop (VO 6003) and the occupier of the wine bar (either VO 6010/VO 6011). If full details have been provided VO 6010 and VO6011 will show trading information in addition to rental details, and it would not be appropriate for all this information to be inspected, copied or produced at the hearing of the VT.
Whether the other hereditaments specified in the counter notice are comparable in character, or otherwise relevant to the case of the person who has given the notice, is a question of fact for determination by the tribunal or arbitrator, if appointed (see para 1.17)
3.12 Applications under Reg 17(9) / Reg 31(7) - VO Refusal to issue notice - consequential
Action
Where the VO has refused or failed to comply with a Regulation 17(6) / Regulation 31(4) counter-notice, the person who made the notice may make application to the tribunal (or arbitrator if appointed) for the VO to be directed to comply with the notice.
Upon receipt of a copy of such an application, the VO should immediately email CEO (Rating) via the Technical Adviser a full report of the circumstances including reasons for considering that the provisions of Regulation 17(6) / Regulation 31(4) (see para 12) are not satisfied, together with a scanned copy of the application and of all notices in respect of documents served by and on the VO in the proceedings concerned.
The VO should state in the report whether it is considered that legal representation should be given at the hearing of the application.
If, before the receipt of instructions from CEO (Rating), the VO receives notice of hearing of the application, the Technical Adviser should be advised by telephone or by email marked importance ‘high’.
3.13 Misuse of Information
Where, in the opinion of the VO, an attempt is being made to obtain information for purposes other than the proceedings concerned, the circumstances should be reported to CEO (Rating) via the Technical Adviser. Subject to any special instructions that may be given in consequence of such a report, the VO should give effect to all notices
3.14 References to Rented Hereditaments not in the same Valuation Area as the Appeal Hereditament
References to hereditaments outside the valuation area should be restricted to essential cases but when a VO wishes to produce rental evidence in respect of hereditaments, and based on documents in the possession of another VO, one of the following alternatives should be adopted:-
(a) a schedule of rents may be agreed with the other parties (see paragraph 6). This method is preferable and should always be attempted;
(b) for the purpose of a Regulation 17(6) / Regulation 31(4) notice certified copies of documents may be obtained from the VO holding the documents. the VO holding the original document should certify each copy at the bottom as follows:-
“certified a true copy (Signature) Valuation Officer ………………… Valuation Area. Date”
When the copy is taken sufficient space on the copy paper should be left for the certificate.
Where it cannot be avoided, the VO who had possession of documents containing information may be called to give additional evidence of comparison as between the rented properties and the appeal hereditament.
Where, however, the evidence required is of a comparatively minor nature, arrangements can be made for one of the VO’s valuers to attend the hearing and give supporting evidence.
Where a VO has specified in a notice documents obtained from another VO, and the ratepayer also has included in a counter-notice hereditaments outside the valuation area, copy documents relating to the latter hereditaments should be obtained from the appropriate VO.
3.15 Imperfect Documents
An unsigned document is not a document to which Regulation 17 / Regulation 31 applies.
Such a document should, therefore, neither be specified in a notice by the VO nor produced for inspection in consequence of a counter-notice.
No attempt should be made to erase any notes in ink that have been added on any document after its receipt in the office.
The VO should be prepared, on request, to explain any such notes to the VT or Lands Chamber of the Upper Tribunal or to the person to whom the document is produced for inspection. It is emphasised that Regulation 17 / Regulation 31 applies only to documents as originally made by the person required to make them.
If any document to be specified in the VO’s notice, or relating to a hereditament specified in a counter-notice, contains any comments (eg questioning honesty) which are considered undesirable for production to the other parties or to the VT or Lands Chamber of the Upper Tribunal, the VO should seek instructions from CEO (Rating). The VO should send a copy of the report via their Technical Adviser.
3.16 Agreement of Facts
It will be an advantage in all proceedings to establish by agreement before the hearing the facts stated in any documents to be used by the VO and the facts concerning the hereditaments to which the documents relate.
Unless, exceptionally, the other party is prepared to agree any analysis that the VO has made, the facts stated in the documents should be produced in schedule form for the purposes of agreement and any analysis dealt with separately.
The VO should offer to agree facts in respect of any documents which the other party requires to be produced at the hearing.
3.17 Rents - Avoidance of Press Publicity
When documents are produced at a VT hearing and the Press is present, the VO should ask the Chairman to request the Press not to publish details of the tenancies of the premises quoted, as such information may prove embarrassing to the occupiers and owners of the properties concerned.
3.18 Publication of the VT decision
The Tribunal decisions are public documents and will be published on the VTE/VTW website unless an application is made by a party to have a decision redacted or anonymized. Requests can also be made to redact information in regard to sensitive or trade information appearing in the decision.
Applications may be made in writing before the hearing, orally at the hearing or exceptionally in writing after the hearing.
All applications must be supported by reasons and it is for the applicant to satisfy the tribunal that an application should be granted.
The following are some of the reasons the tribunal would consider granting an application for:
(a) national security
(b) public safety or public order
(c) personal safety
(d) privacy and family life [CT decisions]
(e) protection of children [CT decisions]
(f) protection of commercially sensitive information eg trade information
3.19 Evidence at Lands Chamber of the Upper Tribunal
see Chapter 8 - Upper Tribunals for full details
Appeals to the Lands Chamber of the Upper Tribunal should be lodged within 4 weeks of the Valuation Tribunal decision.
The expectation of the Upper Tribunal is that parties will have exchanged all documents, evidence and expert witness reports upon which they intend to rely prior to the hearing date, and have a statement of agreed facts as well as having agreed the issues which they require the member to decide upon.
The time limits for the exchange of documents depend upon whether the case is to be dealt with on the standard procedure or the simplified procedure.
Unless the simplified procedure is requested and agreed to by both parties the standard procedure will be followed.
Under both procedures the Appellant and Respondent will usually file and serve a Statement of Case with the appeal and the response notice, however an application for an extension of time to serve the statement of case made be made if necessary and on payment of a fee.
The Statement of Case will include reference to any FOR or SDLT evidence which is to be relied upon.
Simplified Procedure
The Upper Tribunal will fix the hearing date and then not less than one month before the hearing date the parties to the appeal must exchange copies of all the documents they intend to rely upon, this would include full details of any FOR or SDLT information referred to in the statement of case.
Standard Procedure
On acknowledgement of the appeal and confirmation that the standard procedure applies both parties are directed to send to the Tribunal and exchange with each other their expert witness reports and statements of witnesses of fact usually within 2 months of the Registrar confirming the use of the standard procedure.