Section 187: land used for car boot sales, intermittent outdoor sales fairs and similar events (other than markets and livestock markets)
This publication is intended for Valuation Officers. It may contain links to internal resources that are not available through this version.
This section deals with the rateability and valuation of all types of car boot sales and can be taken to apply to other outdoor sales fairs and similar events (including summer sales, fairs, fêtes, and similar events) held on an intermittent basis, unless otherwise stated.
2. List Description and Special Category Code
2.1 Land Used for Car Boot Sales
For car boot sales, the description to be used for entries in a local rating list should be “Land used for Car Boot Sales” plus, where appropriate, “and premises”. The Scat Code of 147 “Land used for Car Boot Sales” with the appropriate suffix denoting responsibility, which is expected to be “S”, for specialist. The Primary Description Code in the rating list should be CM, and the default description overwritten with “Land used for Car Boot Sale”.
2.2 Outdoor Sales Fairs, Other Intermittent Fairs and Events
For outdoor sales fairs, the description to be used for entries in a local rating list should be “Land used for Outdoor Sales Fair” plus, where appropriate, “and premises”. The same principle applies to other intermittent fairs and events. The Scat Code of 992 “Commercial Miscellaneous” should be used, with the appropriate suffix denoting responsibility, which is expected to be “S” for specialist where the valuation is on a rentals comparison basis by reference to receipts as the comparator. Alternatively, for those fairs valued on a rentals comparison basis where the comparator is £/m2, the appropriate suffix is “G”, for generalist. However, the Primary Description Code should be CX, with the rating list description overwritten in order to assist in the identification of the hereditament being valued.
3. Responsible Teams
3.1 Land Used for Car Boot Sales
It is the responsibility of Specialist Teams to make valuations for land used for car boot sales.
3.2 Outdoor Sales Fairs, Other Intermittent Fairs and Events
It is the responsibility of Generalist Teams to make valuations for Other Intermittent Fairs and Events.
The Markets Class Co-ordination Team (CCT) has high level responsibility for the co-ordination of this class. The CCT is responsible for examining the approach to making valuations for car boot sales and outdoor sales fairs. The CCT will deliver Practice Notes describing the valuation basis for revaluation and provide advice as necessary during the life of the rating lists.
The framework for co-ordination is shown in Rating Manual Section 6, Part 1.. Additionally, and where available, this class is subject to the co-ordination procedures outlined in the relevant Practice Notes, both in Rating Manual Section 6, Part 1, and this section.
4.1 Land used for car boot sales are a ‘Specialist’ class.
Responsibility for identifying, adjusting and analysing rents lies with the Specialists in the Units, together with responsibility for ensuring effective co-ordination and valuation.
4.2 Other intermittent outdoor sales fairs and similar events are ‘Generalist’ classes.
Responsibility for identifying, adjusting and analysing rents lies with the ‘Generalists’ in the Units, together with responsibility for ensuring effective co-ordination and valuation.
For further information regarding co-ordination, see Rating Manual Section 6, Part 1.
The variety of circumstances found in practice means that complex issues of rateability and valuation might arise. As a result, when compiling and maintaining rating lists, Specialists in the Units should actively co-ordinate the approach adopted as advised in the relevant revaluation coordination Practice Note.
4.3 Other Information
Other sections of the Rating Manual may be of interest, these are:
*Rating Manual, Section 6, Part 3: Section 630: Markets and Market Places (other than Livestock)
*Rating Manual, Section 6, Part 3: Section 580: Livestock Markets.
4.4 Land put to more than one use
Where there are two rateable occupiers in respect of the land on which the market is held, typically a car park with a market, responsibility for making the assessment in the relevant rating list remains with specialists, even if the car park element has a higher rental value than the market operator. It is therefore vital that effective liaison occurs between specialists and generalists in the Units at all stages: this includes list compilation, maintenance and when assessments are challenged.
5 Legal Framework
Car boot sales vary in scale - some are large and held regularly, others less frequent and smaller. The land on which they take place may already be in assessment for another use, it may be unused from a rating point of view; or it may be agriculturally or otherwise exempt. Sometimes car boot sales take place in large buildings. The organisers may be commercial organisations or fund-raising charity groups.
With such a wide range of circumstances found to exist in practice, it is to be expected that some sites used for car boot sales will be rateable and others may not; of those considered rateable, some may form separate hereditaments and others may form an element of another assessment.
5.1 Car Boot Sales and Markets
Whilst planning law considers car boot sales to be “markets”, it is emphasised that car boot sales do not ordinarily flow from a specific authority to hold a market. From a rating perspective they are rateable as land used for a non-domestic purpose. However, it is recommended that the Rating Manual advice in respect of markets and market places at Rating Manual, Section 6, Part 6: be considered, as many of the issues (especially in relation to the definition of the hereditament) are the same. Similarly, the Rating Manual section on Livestock Markets at Rating Manual, Section 6, Part 6: may be of interest.
When considering the rateability of car boot sales, this note relies on case law precedent that scrutinises legal and physical facts over a wide range of hereditaments; often drawing fine distinctions from the legal and physical facts. It is hoped that the following glossary of terms will assist:
The Land in Question: The defined geographical extent of the land being considered, which will include all interests, duties and rights on, over, above and below that land.
Owner/Landlord: Person who may not be in occupation, but equally may be a user of the land in question.
Particular Purpose: A rateable use to which the land in question is put that is sufficiently distinct from any other use so as to render it capable of separate assessment.
Primary (or Paramount) Use (or Purpose/Possession): The most significant use (or purpose/possession) of the land in question (whether rateable or not).
Secondary (or Subordinate/Ancillary) use (or Purpose/Possession): Any use to which the land in question is put other than the primary use (whether rateable or not).
Primary/Predominant User: The person engaged in a primary (or paramount) use (or purpose/possession) in respect of either the land in question, or a particular purpose thereon.
Secondary (or Subordinate) User: A person engaged in a secondary (or subordinate/ancillary) use (or purpose/possession). It should be noted that a secondary (or subordinate) user or the land in question might still prove to be in primary occupation in respect of a secondary (or subordinate) use.
Primary Paramount Occupation: The most significant rateable occupation in respect of a particular purpose. Any assessment of a primary (or paramount) occupation would ordinarily take into account the value of any relevant secondary (or subordinate) use in respect of the same particular purpose.
Exclusive Occupation: Primary occupation of land for a particular purpose where there are no secondary (or subordinate) users in respect of that purpose, expressed as “exclusive occupation for a particular purpose”.
Paramount Occupier: User in paramount occupation.
Paramount Control: Control, whether granted or retained, that is sufficient to prevent exclusive or paramount occupation by another user (whether primary or secondary) and instead confers rateability. The person in paramount control may be a paramount occupier, but may also be the owner or landlord not in occupation.
Secondary (or Subordinate) Occupation: Rateable occupation of the land in question for a secondary (or subordinate) particular purpose (or ancillary advantage) by a secondary (or subordinate) user who, whilst not the primary user of the land in question, is nevertheless found to be in primary occupation for a particular purpose (which may be separately assessed or taken into consideration when making an assessment of a person in paramount control).
*A secondary (or subordinate) user found to be in rateable occupation would not be separately assessed unless it is established that he/she are in fact the primary occupier in respect of that particular (secondary/subordinate) purpose. The only alternative is that his/her occupation is taken into consideration when making the assessment of another person in paramount control.
Grantor: A person with an interest in the land in question (who may be an owner, primary or secondary user) who grants (or informally allows) a car boot sale to take place.
Operator: A car boot sale operator (and equivalent in terms of fairs, attractions, etc.).
The definitions above will also assist when considering the summaries in respect of a selection of cases that consider exclusivity of occupation at the Appendix to this note.
As a generality, the use of land for car boot sales is rateable. Car boot sales occupy land for a non-domestic purpose and, providing the tenets of rateable occupation apply, fall to be assessed in local rating lists. However, as with any other hereditament, car boot sales have to be considered on their own individual facts, which should then be carefully weighed against established legal principles.
5.3.1 Rateable Occupation - General
The primary consideration will be the four basic ingredients for determining whether an occupier is in rateable occupation as developed in the decision of the Court of Appeal in J Laing & Son v Kingswood AC (1949) 1KB 344:
Occupation for not too transient a period.
Before proceeding further, the facts of a particular case should be carefully measured against these four tenets.
The unit of assessment should be ascertained following the established rules set out in Gilbert (VO) v Hickinbottom& Sons Ltd (1959) 2 QB 240 and Westminster City Council v Southern Railway Co (1936) HL 24 RIT 278. These two cases and others are explored in more detail below.
The Rating Manual: section 3 part 1- The Hereditament also deals with this area in some detail and should be consulted.
5.3.2 Rateable Occupation – Specific
Of the four tenets of rateable occupation mentioned above, permanent (or not too transient) occupation and exclusive occupation will need particular consideration.
Individual car boot traders are unlikely to be in rateable occupation. (See Roberts v Aylesbury Overseers (1853) 1 E&B 423, where stallholders’ occupation in a market place was considered too fleeting).
Where the land in question is not used for any purposes other than car boot sales, complications are unlikely to arise in identifying the rateable occupier. However, where the same land is also used for another purpose, the following should be carefully considered:
Identify who is capable of being in rateable occupation
Consider whether the occupation is exclusive
Consider whether the land on which the sale is operated would be otherwise exempt
What actually happens on the ground takes precedence over any intent in law
220.127.116.11 Who is capable of being in Rateable Occupation?
The first stage is to identify who may be in rateable occupation. It may be:
the owner or an occupier of the land as grantor (who may be primary user and who may also be in paramount occupation);
the operator of the car boot sale in either primary or secondary (subordinate) occupation.
In general, where a grantor permits an operator to use land for a car boot sale, or indeed any intermittent land use, the grantor will reserve certain rights in respect of the land in question. It must be remembered that where the operator has been given exclusive occupation for the particular purpose of running a car boot sale, it is possible that rights retained by the owner (or grantor) allow him or her to enjoy or grant primary (or exclusive) occupation for a different purpose.
The following should therefore be established:
The terms of the agreement between grantor and operator and the nature of the rights granted.
The nature of the rights reserved by the grantor.
What was the intention of the parties to the agreement?
What is the “character” of the occupation irrespective of its eventual length?
What is happening “on the ground”?
Possible Rateable Occupiers…
**The owner or occupier of the land as grantor: **
Where permission to use land for a car boot sale is granted (by the grantor), all available documents should be examined to discover if the grantor retains exclusive control of the land. Some documents expressly state that control of the land shall at all times remain vested in the grantor. Others reserve at the grantor’s absolute discretion control of matters affecting the way the car boot sale shall operate and the area of land permitted to be used, on an individual sale basis.
The operator of the car boot sale:
Where the car boot sale is held on land already assessed for rates in respect of a primary use (in all likelihood for a different particular purpose, e.g. car parking), and the relevant primary user is considered the paramount occupier, usually the added value of the car boot sale would be included in the existing assessment.
In the context of car boot sales, an example of a primary occupation would be that of a private car park operator, who has let out (or granted) the right to hold a car boot sale (a subordinate occupation) on the land for one or two days per week.
Where the grantor uses land for other rateable purposes and the car boot sale operates under an informal arrangement, it may be assumed that the parties intend control to remain with the grantor, unless there are any clear indications to the contrary.
Where it is determined that the car boot sale operator is the primary user of land, then that also implies rateable occupation, any other user(s) by definition being subordinate. This will be true whether such subordinate users are occupying for the particular purpose of operating another car boot sale or not.
18.104.22.168 Not too transient?
In those cases where a separate hereditament is contemplated, care should be taken to check that the occupation is not too transient.
If the parties intended the car boot sale to operate for a reasonable period, and the occupation granted had a character that established permanence, it will not be material that the car boot sale operates for one day per week, month or year or if the agreement can be terminated at very short notice.
Therefore, a rate cannot be avoided because the car boot sale is only held on certain days of the week, or certain weeks of the year. See Hall (VO) v Darwen Borough Council and Silcock Bros. (Amusements) Ltd (1957) LT 51 R&IT 9; 2 RRC 329; Amies RA Vol 29 – 1958 p40 (outlined below), where holding two fairs a year, coupled with an agreement conferring the right to hold fairs over a reasonable period was enough to establish rateable occupation. A distinction is drawn between intermittent occupation and transience; although the actual occupation in Hall v Darwen was intermittent, it was not too transient.
As car boot sales can sometimes generate a very substantial income, it is considered that just holding one car boot sale or fair per annum may be sufficient to confer rateability if;
the scale of the car boot sale warrants it, and
there is an intention to repeat the car boot sale year on year, indicating continuing occupation.
22.214.171.124 Is the occupation Exclusive?
Occupation of land must be exclusive for a particular purpose. A rateable occupier should have the right to carry out the purpose of that particular occupation without anyone else on the premises doing the same thing. Exclusivity means that there can only be one rateable occupier for a particular purpose. If there is more than one occupier for a particular purpose then one or other must be in paramount occupation. Case law offers helpful guidance. The Appendix to this section provides summaries of useful cases. [Caseworkers are encouraged to consult the full case reports to gain the proper context]:
The cases in the Appendix illustrate the kinds of issues that arise when establishing who is in rateable occupation. When car boot sales are held on land, which is at other times used for another different purpose, questions of exclusivity and paramount control will arise. In such instances, it is often found that one of the occupiers of the land in question has overall paramount control and occupation. This is likely to apply whether the uses are simultaneous or consecutive. Where there is no occupier in paramount occupation of the land, the owner should be considered to be in paramount control of the land in question.
126.96.36.199 Rateable Occupation - What happens on the ground?
The emphasis in all case law precedent focuses on an examination of what actually happens in practice, on the ground. An examination of the circumstances existing on the ground may indicate that the person in control is different to the one the documentation appears to indicate. What actually occurs takes precedence over any intention indicated in documentation (See R v St Pancras Assessment Committee (1877) 2 QBD 581, which helpfully supplies the maxim: “ The existence of legal possession thus understood is mainly, if not entirely, a question of law; the existence of actual possession is mainly, if not entirely, a question of fact”).
5.4 Rateability of a car boot sale held on land exempt from rating or associated with exempt buildings or premises?
Buildings and premises exempt from rating include both places of religious worship and agricultural land. For further information see;
Rating Manual Section 6, Part 6, Part B Rating Manual Section 6, Part 6, Part B for details on the issue of exemption of churches, church and chapel halls and similar buildings,
[Rating Manual Section 6, Part 6, Part D for details on the issue of exemption and agricultural premises and land, and
Rating Manual Section 6, Part 3, Section 385 for guidance on farm diversification (including maize mazes).
Important: The above Rating Manual references must be consulted to gain a proper appreciation and understanding of exemptions; the limited guidance in this paragraph should only be considered in the full context of those sections of the Rating Manual.
5.4.1 Taking action in respect of car boot sales on exempt land
When specifically considering car boot sales (and other intermittent outdoor sales fairs and similar events) held on exempt land, it is important to ask three fundamental questions:
a.Does the land used for the car boot sale lose its exemption?
b.Is the otherwise exempt land capable of separate assessment? If so, then
c.Who is the rateable occupier of the otherwise exempt land?
Taking each question in turn:
a) Does the land used for the car boot sale lose its exemption?
Land predominantly used for non-exempt purposes such as a car boot sale, but held on exempt land, may fall to be assessed. However, in many instances, such non-exempt use only takes place for a fraction of the year, which raises questions about the impact of those non-exempt uses on exemptions from rates allowed by the 1988 Act. Therefore, in order to determine whether the non-exempt use loses eligibility for exemption, the wording of the 1988 Act needs careful consideration, together with a close examination of the facts (both legal and on the ground) and degree to which the facts on the ground have an impact on the exempt use.
The wording of the 1988 Act is explored in great detail in the relevant sections of the Rating manual as mentioned earlier in this paragraph; in summary the Act provides that a hereditament is exempt to the extent that it consists of… agricultural land or places of religious worship etc.
Although decided before the 1988 Act came into force, in Eden (VO) v Grass Ski Promotions Ltd. (1981) LT RA 7, the use of agricultural land on 25 Sunday afternoons as a grass ski slope was considered insufficient to defeat the agricultural exemption. In that case:
1.the respondents were not in rateable occupation of the land because they did not enjoy exclusive occupation since their licence was expressly non-exclusive; they were not able to exclude members of the public during the period when they were using the land;
2.the landowner was in rateable occupation of the land because he derived the financial benefit of the licence fees and he also derived the benefit of the agricultural use of the land for the rest of the year;
3.there was a clearly defined hereditament to be identified on the plan attached to the licence agreement;
4.the land was pasture land which was used for sport or recreation and such land did not lose the exemption from rating as agricultural land, unless it was not only used for sport, but also kept or preserved for sport, and only then if it was so kept or preserved mainly or exclusively;
5.the land was not mainly or exclusively kept or preserved for purposes of sport or recreation and accordingly was exempt from rating as agricultural land.
Conversely, United Counties Agricultural Society v Knight (VO) (1973) RA 3 provides a useful counterbalance, as the interference to the agricultural land was held to be more than de-minimis, given the length of time required to set up a regionally important and sizeable agricultural show (ten days), the period of the show itself (two days) and the removal of the show (ten days) – a total of twenty two days (just over three weeks). Additionally, the tribunal were not convinced that grazing could commence straight after the removal of the show, making the total period of disruption at least seven weeks. Interestingly, the land used as a car park for just the duration of the show (two days) was considered to be so casual that the occupation for that particular purpose was treated as “de minimis” and remained exempt.
Therefore, as far as agricultural exemptions are concerned, where the car boot sale is let out or run in such a manner as to confer rateability and all tenets of rateable occupation are met, full consideration should be given to making an assessment at b) and c) below.
Places of Religious Worship, etc.
A car boot sale is not considered exempt in its own right as a place of religious worship or a church hall, chapel hall or similar building used in connection with a place of religious worship. However, in the case of church premises, if the church remains in control of a car boot sale so as to be considered to be in occupation of it, exemption under paragraph 11 of Schedule 5 to the LGFA 1988 may well apply. In Gallaher (VO) v Church of Jesus Christ of Latter Day Saints 2006 LT RA 1, Mr George Bartlett QC emphasises the relevance of the words “to the extent that”, as follows (at page 21 of that decision):
“…I should deal with a feature of para 11 that, as I have noted, was not present in the earlier provisions. This is the inclusion of the words “to the extent that” in both subpara (1) and subpara (2). The exemption accorded to places of religious worship and church halls etc was given “to the extent that” the hereditament consisted of one or more of these things, and the exemption given under subpara (2) was given “to the extent that” the hereditament was occupied as specified and was used in one or other of the ways specified in (a) and (b).
The words “to the extent that” also appear in other exemption provisions in Schedule 5 of the 1988 Act and they seem to me to be a useful, fair and practical addition to the provisions of the earlier legislation. Depending on the context in which they appear they are capable of bearing either a physical or temporal meaning or both (see Ryde D-D), and both parties in the present case agreed that this was so. The exemption in sub-paragraph (1) is given to the extent that the hereditament “consists of” a place of public religious worship or a church hall etc. The qualification here, in my judgment, is a purely physical one, so that those parts of a hereditament that are neither a place of public religious worship nor a church hall etc are excluded from the exemption. But the fact that, for instance, a church is used from time to time for secular concerts or a church hall is let out for functions unconnected with the church would not lead to reduction in the relief that is accorded. The church would still be a church and the church hall would still be a church hall and, to the extent that a hereditament physically comprised one or other or both of these, it would “consist” of it or them for the purposes of the exemption. The qualification as it applies in sub-paragraph (2), on the other hand, in my view operates in terms of both space and time. That is because exemption is conferred to the extent that the hereditament is occupied by an organisation of the sort specified and used as specified in (a) or (b), and a use can be viewed both in terms of time and the space to which it relates.”
He goes on to say (at page 23 of that decision):
“There are two final matters to which I should refer on the construction of the provisions. Firstly, the extent of the exemption under para 11(2)(a). This provides that a hereditament is exempt to the extent that it is occupied “by an organisation responsible for the conduct of public religious worship” in a place of religious worship and “is used for carrying out administrative or other activities relating to the organisation of the conduct of public religious worship in such a place”. …
…. The second matter of construction is what constitutes a church hall or chapel hall for the purpose of assessing whether premises are similar to these. The test in not an architectural one… Without myself attempting a complete definition, I think that in essence a church or chapel hall is a hall, often with other rooms and ancillary accommodation, which is used for functions and meetings by the congregation, and at times also by others, for the conduct of church business and sometimes for wider community purposes that reflect the nature and purposes of the ecclesiastical body that is in occupation. It is not itself a place of worship.”
Therefore as far as religious exemptions are concerned, where the church retains control of the car boot sale, and runs it for the purposes of the religious body concerned, exemption will continue to apply. Where the church lets out the car boot sale in such a manner, scale or frequency that it cannot possibly be considered a use that satisfies the primary purpose of religious worship etc., exemption is lost and full consideration should be given to making an assessment at b) and c) below.
Summary in respect whether exemption is lost (Question a):
When considering whether exempt land used for a car boot sale will lose its exemption, it is important to recognise that the exemption remains to the extent that the land use continues to satisfy the primary purpose of agriculture or religious worship. It is considered that the use to which land is put is primarily a question of fact and degree depending upon the circumstances of the particular case and all relevant facts of the case must be carefully considered.
Once such considerations have taken place and a view is formed that exemption is no longer enjoyed in respect of the land occupied by the car boot sale;
where the car boot sale is considered to be a paramount occupation, exemption is lost as far as that non-exempt particular purpose is concerned; alternatively,
where the car boot sale is not considered to enjoy exclusive rateable occupation, despite the loss of exemption, careful consideration is required to establish whether the grantor is in paramount control; it is hoped that guidance in b) and c) will assist in making this judgement.
b. Is the otherwise exempt land used for the car boot sale capable of separate assessment?
It is very important to establish that the otherwise exempt land used for the car boot sale is capable of being assessed as a separate rateable hereditament.
Therefore, guidance contained elsewhere in this Rating Manual Section should be considered in order to determine whether an assessment is capable of being made.
c. Who is the rateable occupier of the otherwise exempt land?
It will now have been determined that exemption is lost and, either
*the otherwise exempt land used for car boot sale is not occupied by an organisation responsible for the conduct of public religious worship in a place falling to be exempt, or on otherwise exempt agricultural buildings or land, or
*the otherwise exempt body is in exclusive occupation for the particular purpose of operating a car boot sale.
Whichever is the case, it will have been determined that the land is capable of separate assessment. It therefore remains to be determined who is the rateable occupier.
(i) Where a car boot sale on otherwise exempt land is “let out”;
to an operator having exclusive control over it at the appropriate times, but having no expressed or implied right to occupy at all other times (in other words, no “constructive occupation”), and
- the legal position and facts on the ground all point to rateable occupation, and
- the tenets of rateable occupation are met, then
the car boot sale should be assessed, the occupier (or owner) of the principal hereditament would be the rateable occupier of the car boot sale. In such circumstances, the operator of the car boot sale should probably not be separately rated.
(ii) Where a car boot sale on otherwise exempt land is not formally “let out”; and
assuming a car boot sale on otherwise exempt land could be assessed as a separate hereditament, but
it is not fenced off in such a manner to delineate the operational boundaries of the car boot sale in some reasonable fashion, then
it would generally be expected that the occupier (or owner) of the principal hereditament would be the rateable occupier of the car boot sale. In such circumstances, the operator of the car boot sale should probably not be separately rated.
(iii) Alternatively, where a car boot sale on otherwise exempt land is not formally “let out”; and
if the otherwise exempt land used for a car boot sale were fenced off, or
in some other manner is delineated or marked (for example it is held in an already existing suitably enclosed area like a field or yard), and
there is an additional expressed or implied right to occupy at other times if required and with appropriate notice given (sometimes referred to as “constructive occupation”), then
the operator of the car boot sale would be expected to be the rateable occupier for the particular (non-exempt) purpose of holding a car boot sale.
Determinations in individual cases can only realistically be made when in possession of the full facts, both those pertaining on the ground and the legal position. The tenets of rateable occupation then need to be carefully considered, as should any weight to be attached to express legal agreements regarding responsibility for rate payment, insofar as they indicate the degree of intended control retained and allowed by agreement between the parties.
5.4.2. To summarise the position in respect of exempt land:
1.It is important to consult the relevant Rating Manual sections on churches, chapels, agricultural premises and farm diversification mentioned above to gain the proper appreciation and understanding of exemptions.
2.The extent to which the proceeds raised by the sale are used in connection with the functions of the grantor (presumably the exempt body) otherwise using the land may be a useful indication of whether or not a separate occupation arises. The power to prevent others from using the land for the same purpose at the same time is also a relevant consideration.
3.Where no oral or written agreement exists between the landowner and the operator of the car boot sale, it is difficult to envisage that exemption will be lost.
4.Where a written or oral agreement does exist between the landowner and the operator of the car boot sale, but that agreement does not grant the operator exclusive possession for that particular purpose, but rather allows for non-exclusive occupation (as in the Grass Ski case above), then the owner will in all likelihood be rateable occupier and where the land qualifies as exempt land and is exempt from rating, it is again difficult to envisage that exemption will be lost.
5.However, where a written or oral agreement does exist between the landowner and the operator of the car boot sale, and that agreement grants the operator exclusive possession for that particular purpose, then this, combined with a high frequency of use will be in all likelihood sufficient to defeat exemption.
6.In general terms, when making an assessment in respect of a car boot sale, once exemption is lost, the rateable occupier will be the grantor (or owner) who would normally benefit from the exemption that has now been lost in respect of the land used for the car boot sale.
5.5 Rateable Occupation – A summation
Before summarising the above, it should be reiterated that car boot sales, intermittent sales fairs, events and other outdoors attractions (such as cornfield mazes) are essentially rateable. They occupy land for a non-domestic purpose and, providing the tenets of rateable occupation apply, fall to be assessed in local rating lists.
The following questions and answers should assist the caseworker.
5.5.1 Separately rateable?
Making a separate assessment of a car boot sale will depend upon:
The rateable occupier being correctly identified.
The car boot sale being a regular event. In other words its pattern of occupation continues (or has continued) over a reasonable period; say once or twice a week or month for many months (or once every two weeks over the summer months for a year or so) with a reasonable prospect of continuance.
(i) A separate assessment (and exclusive occupation) willalways arise where:
The operator of the car boot sale is in primary occupation for that particular purpose, and
They are the only primary occupier in respect of the land in question, and
The car boot sale is on land that is not rateable for any other purpose.
(ii) A separate assessment (paramount occupation) may arise where:
The operator of the car boot sale is in primary occupation for that particular purpose, and
The car boot sale is on land that is not rateable for the same purpose in respect of another user’s occupation at other times, and
The car boot sale is on land that is not rateable for any other purpose considered to be the “primary purpose”, and
The car boot sale is on land that is rateable for any other purpose considered to be a “secondary (or subordinate) purpose”.
*The operator of the car boot sale is in primary occupation for that particular purpose, and
*The car boot sale is on land that is not rateable for the same purpose in respect of another user’s occupation at other times, and
*There are other primary users, but none are in paramount control of the land in question.
(iii) A separate assessment will not arise where:
The car boot sale occupier is not in primary occupation for that particular purpose, or
The car boot sale operator is a subordinate occupier who is not in paramount control, or
The operator is in primary occupation for the primary purpose of car boot sale, but is subject to a person in paramount control of the land in question.
5.5.2 Very few car boot sales held per annum, with no agreement to continue year on year?
A judgement has to be made, based on:
the prospects of the continuance of the car boot sale (based on the intentions of the car boot sale operator and the grantor of the permission to hold the sale); in other words determining the intent between the parties and the “character” of occupation, and
the size of the car boot sale(s) in question.
In the ordinary course of events, a large car boot sale (with hundreds of vendor cars), that appears for one day a year with an intention to hold it again the following year, is rateable. Conversely, land used for a car boot sale held three times over three months, but with no discernable or reasonable prospect of continuance, is unlikely to be separately rateable as it is too transient. This approach is also valid if the intermittent car boot sale(s) were held on land not occupied for another rateable occupier, e.g. scrub or exempt land.
However, where the land is otherwise rateably occupied, a transient occupation (however brief) should be properly taken into consideration when making the rating assessment of the primary occupier.
5.5.3 Sufficient number of car boot sales on land, but where there is a primary occupier for a different particular purpose?
Where the primary occupier of the land in question is in paramount control in respect of a different primary purpose, and that purpose is rateable, the car boot sale use should be taken into account when ascertaining the assessment of that primary. Whether that car boot sale appears for one day only, or twice a week for a year, the essential requirement is that the land occupied as a car boot sale is in fact a subordinate use, subject to paramount control by the existing primary occupier.
However, if the operator of the car boot sale is in paramount control of the land in question, then other rateable occupations are by definition subordinate. At that point, the rateable occupier will be the operator of the car boot sale and the value of the subordinate occupier(s) should be considered when making the car boot sale assessment.
Alternatively, where the user in primary occupation in respect of the different particular purpose is not in paramount control of the car boot sale occupation, then separate assessment may be possible if it can be shown that the car boot sale operator is in paramount occupation for that particular purpose. For example where the alternative purpose is a mining operation occurring underneath the land in question.
However, in practice it is expected that one assessment is made, with one of the primary occupiers or the owner in paramount control of the land in question.
5.5.4 The primary occupier is an exempt user in paramount control?
When the primary occupier determined to be the rateable occupier of exempt premises is in paramount control, there is often no assessment to which the increased income from the use of land as a car boot sale can be added. However, the enhancement to reflect the non-exempt value will show in the Rating List with a description including (part exempt). For more details regarding the approach to non-agricultural uses, see the relevant sections of the Rating Manual (links at paragraph 5.4 above).
5.5.5 Occupation for the same purpose as another rateable occupier?
On land that is otherwise occupied for the same rateable purposes, a car boot sale that appears for one day only, being a “one-off” occupation of land with no discernible or reasonable prospect of continuance, is not rateable in itself, but such an occupation should be taken into account when ascertaining the assessment of the primary occupier for the particular purpose.
In other words, two separate car boot sale operations on a piece of land cannot be separately assessed; there can only be one assessment for a particular purpose in respect of land in question, with one of the primary occupiers (or an owner) in paramount control thereof.
5.6. Unit of Assessment
The geographical extent of a hereditament will generally be determined by the extent of its rateable occupation. For specific advice in this respect, see The Rating Manual: section 3 part 1.
6. Survey Requirements
All car boot sales should be investigated before assessments are altered or brought into rating lists. The facts must be ascertained before altering or making new assessments
6.1 Preliminary Judgement
In every case, an early judgement should be made regarding whether a new or changed assessment is likely to arise. This should be based on readily available local information and will also be expected to include a brief inspection whilst the car boot sale is taking place. The extent and content of advertising, at the site and elsewhere will hopefully indicate both the frequency and duration of the car boot sale in question.
So, as a starting point and before detailed enquiries are made, it should always appear, from the way the land is being used, that all the elements for rateable occupation are likely to be present.
6.2 Seek Further Particulars
Once rateable occupation seems probable, the operator should be asked for further particulars. This approach should always be made in writing and also explain that the reason for the request is to assist in the consideration of the possible rateability of the land being used for the particular car boot sale.
When seeking further particulars, it is important to recognise that unless the car boot sale is being operated by the owner of the land, there will always be a” grantor” and an “operator”. The nature of the legal relationship between grantor and operator will vary from one car boot sale to the next: it may be very informal or a fully drawn up legal document.
6.3 Site Inspection
It is important to conduct a more detailed site inspection at this stage. During the site inspection, whilst the car boot sale is taking place, all relevant factual information should be obtained and examined to discover the basis under which the car boot sale occupies the land. For example, what are the terms of occupation and is there a rent payable? It will also usually prove helpful to make a record of the way the car boot sale operates, by the use of photographs, “flyers” and newspaper advertisements, etc.. A note should be made about the weather on the day of inspection and photographs taken where possible.
As the majority of inspections will take place outside normal office hours the appropriate line management authorisation should be obtained beforehand, and care must be exercised over Health & Safety issues.
All relevant facts should be recorded about the operation of a car boot sale operation over the last year or so. These will include:
Details of when the car boot sale/fair takes place – (months of year, days of week, hours of day),
Entry charges, and charges for sales pitches etc – cars/vans/rides/others
Numbers of sales pitches used/available – cars/vans/others
The area of land (and buildings) used for car boot sale or fair/event and for buyers/visitors car park should be clearly marked on a plan (with a note as to whether areas vary on different days/seasons/ etc),
Type of barriers to these areas- e.g. fences/walls/markers/nothing
Measurements (Gross Internal Areas) of any buildings occupied by the car boot sale or fair/event,
Make a note of the weather on the day of inspection,
Take photographs where possible and appropriate.
Surface of ground for car boot sale or fair and parking e.g. grass/hard-core/tarmac/concrete, with these areas marked on plan,
Name, address and telephone number of the operator
7. Survey Capture
All relevant notes and checklists should be captured on EDRM as appropriate. Photographs should be placed on RSA.
8. Valuation Approach
8.1 Separate Hereditament
There should be adequate local rental evidence for cases involving car boot sales. When adjusting the rent passing regard should be had to the inclusion of any services provided by the landlord and/or of the payment of any rates.
When analysing any rents passing, it may be possible to produce a local basis using either area (in m2) or number of spaces for cars, tents, marquees and attractions, but it is more likely that the most appropriate comparator to assist in devaluation of rents is gross receipts. Where this is found to be appropriate, it is reasonable to seek the gross receipt information required to analyse (or devalue) rents and proceed to value hereditaments.
8.2 Part of another hereditament
Where comparison is being made it is important to ensure that this takes place on a like-with-like basis. All relevant aspects should be considered (these may include the size of the car boot sale, its catchment area, the facilities provided, how often it is held, its likely profitability, etc.)
The suitability of land for car boot sale purposes is a relevant factor to be taken into account when such car boot sales are operated from hereditaments that are assessed in the rateable occupation of the occupier or owner in paramount control. In valuing hereditaments rateable for another (principal) use that are also used for car boot sale, the value of the car boot sale should still be taken into account to the extent that it enhances the value of the hereditament to the occupier in paramount control. In other words, when the value of a car boot sale’s use of land is being reflected in the value of other uses, regard should be had to any enhancement of the value of those other uses arising from the presence of the car boot sale.
8.3. Other Valuation Considerations
The T&CP General Development Order 1988, which permitted development for certain temporary buildings and uses, has been replaced by two Orders. The relevant one for this purpose is the T&CP (General Permitted Development) Order 1995, Schedule 2 in which Part 4, B2(a) permits the use of any land for certain purposes (including the holding of a market) for not more than 14 days in total in any calendar year. In addition provision is made for any moveable structure for such use on the land. Permitted development does not extend to buildings, or to land within the curtilage of buildings.
As far as car boot sales are concerned, it was held, in the planning case of Fitzpatrick v Secretary of State for the Environment (1988) JPL* 564, 1 PLR** 8, that a car boot sale could be regarded as a market and thus the meaning of “temporary” is for not more than 14 days in any calendar year. Local planning authorities are able to withdraw future permissions with immediate effect, at any time.
This planning position should be particularly borne in mind when the principal use of the land is being assessed, and car boot sale are only held occasionally. In an area where there is no shortage of available alternative land, a car boot sale may add little in value to a particular property due to the ease with which land can be used for up to 14 days without the need for a planning consent. This argument will also apply to sales fairs.
Conversely, some car boot sales and fairs generate substantial income, such that would be expected to significantly increase the rental value of the land on which they operate, whether the land on which the car boot sale is operated is assessed separately or such added value enhances in the occupation of the grantor (or another person found to be in paramount control of the land in question).
- Journal of Planning and Environment Law (See Paragraph 8.3)
**Planning Law Reports (See Paragraph 8.3)
9. Valuation Support
Valuations for car boot sales places are typically made on the rentals comparison basis where the comparator is gross receipts. They must therefore be made using the Non-Bulk Server (NBS), which contains a specific application tailored for ‘Land Used for Car Boot Sales’.
Valuations of Outdoor Sales Fairs, Other Intermittent Fairs and Events should be performed on the Rating Support Application (RSA). RSA should not be used in respect of such sales fairs that are valued byreference to receipts; in such cases, the NBS should be used. However, where valued by reference to area (a £/m2 basis), RSA should be used.
Appendix: Land used for Car Boot Sales, Intermittent Outdoor Sales Fairs and Similar Events (Other than Markets and Livestock Markets)
A selection of case summaries
This appendix to the main manual section at Rating Manual Section 6 part 3, Section 187 provides summaries of useful cases regarding exclusivity of occupation in general, referred to at Paragraph 5.2.3 of that section. The following summaries should provide assistance when considering the issue in respect of car boot sales, intermittent outdoor sales fairs and similar events. [Caseworkers are encouraged to consult the full case reports to gain the proper context]:
Roads v The Overseers of Trumpington (1870-71) L.R. 6 Q.B. 56: The owner of land, which was let to an agricultural tenant, agreed to permit the appellant to enter and dig for coprolites, the right to give such permission having being reserved on the earlier letting of the land to an agricultural tenant. The appellant was to “enter upon” the land and, after digging out the coprolites, restore it to a similar agricultural standard as before for the tenant.
The appellant argued there were no “words of demise” on the agreement, which shows that the parties treated the appellant’s right as a mere easement and not a right of exclusive occupation. They maintained the “right to dig and remove coprolites” was like a sale of standing timber.
It was held that the appellant was in occupation for the particular purpose of digging coprolites and had more than a mere easement, the decision being based, firstly, on the words of the easement, which allowed the appellant exclusive occupation and secondly on the nature of the works to be done by the appellant under the agreement.
Blackburn, J said that:
“… the words “enter upon” and “deliver up”, clearly show an intention by the trustees to give the right of occupation to the appellant from the time of entry upon the land until it was delivered up. […] …the agreement provides that the contractors are to do everything that is to be done on the land. […] These are acts which could hardly be done without the sole and exclusive possession by the appellant of the land in question.”
R. v The Overseers of Whadden and Others (1874-75) L.R. 10 Q.B. 230: This case tackled the question for how much land should be rated where the extraction was a “perpetually shifting occupation”. The appellant was managing director of the Patent Nitrophosphate or Blood Manure Company, digging coprolites, which involved extraction and eventual restoration to agricultural standard. Although the area of the land being worked was approximately the same throughout the year (around ten acres), it was not the same ten acres in use at one point in time (the overall area eventually worked amounted to many fields over the years of extraction).
It was held that the approximate area being extracted at any one time be rated, despite the actual “footprint” of that area constantly shifting throughout the year.
Mellor J said that:
“The appellant is in possession of ten acres of land during at least one whole year; but of these ten acres only about one fourth is dug over by him and exhausted in each quarter,[…] The appellant is not necessarily in the occupation of the same ten acres of land during all the year, nor indeed during the whole of any quarter of a year, his occupation being a perpetually shifting one, and he taking on, from time to time, and yard by yard, fresh land at one end of the operation, and relinquishing it as and when levelled at the other end.”
**Comment on the concept of “perpetually shifting” rateable occupation. **
In finding the appellants in Whaddon to be in “perpetually shifting rateable occupation”, a further question arises: Does the speed of perpetual shifting occupation have a bearing on the nature of the hereditament?
Where the change of possession is a gradual one, taking place “foot by foot, yard by yard” and day-by-day, it may be reasonable to define an appropriate area as in the Whaddon case. However, where the “perpetually shifting occupation” becomes sufficiently slow, separate rateable hereditaments will probably exist and cease to exist as time goes by, and be quite capable of separate entries in rating lists as appropriate.
Conversely, where the rateable occupier for such a purpose “perpetually shifts” over land at a significantly faster speed, and the speed of the ”perpetually shifting” occupation is such that a completely different piece of land is occupied at the end of what may be deemed a reasonable period than was there at the start, it may be difficult to show rateable occupation at all (for example site huts moving every fortnight).
Rochdale Canal Company v Brewster (1894) 2 Q.B. 852: A portion of one of Liverpool docks was appropriated to the use of the Rochdale Canal Company by the Mersey Docks and Harbour Board, in whom the docks were vested. The company had agreed to pay a yearly rent, to pay tenant’s rates and taxes, to keep the premises in good and tenantable repair, to allow the servants of the board free access thereto at all times, to confirm to the regulations of the board and to work the premises in conformity with the regulations of the Harbour Master; the board reserved a right of re-entry without notice in case of non-payment of the rent.
It was held that this agreement must be construed together with the special Act [….] by which the Docks Board had power to make it, and it was not intended and did not in fact confer upon the canal company such an exclusive occupation as to make them rateable in respect of the premises.
Lopes, LJ said that:
“The question in this case is whether the board had parted with exclusive possession, so as to make the canal company liable for rates. It is the intention of the parties, and not the words of the agreement only, that must be looked at, for it is the substance rather than the form of the transaction that must determine the question of exclusive possession.”
Holywell Union v Halkyn District Mines Drainage Co (1895) AC 117 HL: Considered primarily the question of whether the grant of an easement to the drainage company by the Duke of Westminster was rateable, or not. The company was empowered by its special Act to make and maintain certain tunnels in land owned by the Duke, who by deed granted the company “all such easements in and through, and right of drainage through, and other exclusive rights of using ‘the Halkyn Deep Level’”. The company entered the land, executed works (which included placing in the ‘the Halkyn Deep Level’ oval shaped iron tubbing about five feet high) and in other ways substantially repaired and improved both it and the open cut.
The Duke reserved certain rights, these including
‘the right to use the Halkyn Deep Level and the tunnels to be made….for searching for and working the mines and beds of lead ore and blende…and for removing through or by means of any shafts levels and drifts in use by the said company…’
The House of Lords held that liability to rates is not a matter of title, but a matter of de facto paramount occupation. The drainage company had such possession of “the Halkyn Deep Level” and of the open cut, since it alone has the right of using them for their primary purpose, the Duke’s [the grantor’s] rights being subordinate. Therefore the company was in occupation.
Of particular interest is that running through a part of ‘the Halkyn Deep Level’ Tunnel was a tramway, being in the occupation of the Duke, and used in the exercise of his retained rights.
In respect of this tramway, Lord Herschell LC said that:
“A question was raised with regard to a tramway which has been laid down along a part of the tunnel for the purpose of carrying minerals and other materials. It is not necessary to consider whether the occupiers of this tramway could be separately rated in respect of it. The fact that its construction and use are permitted does not, in my judgement, prevent the respondents being in occupation of the land”
And Lord Davy added:
“But then it is said that the occupation not exclusive, inasmuch as the Duke of Westminster has reserved certain rights to himself and his licensees over the tunnel and water course, and in pursuance of such reserved rights the Halkyn Mining Company have laid a tramway along one of the tunnels and have placed ventilating pipes there. Two questions arise: what is meant by exclusive occupation when used in connection with the subject of rating? And, what are the conditions subject to which the Duke exercises his reserved rights? It is clear that exclusive occupation does not mean that nobody else has rights in the premises. The familiar case of landlord and lodger is an illustration. The cases[*] show that if a person has only a subordinate occupation subject at all times to the regulation of another, then that person has not occupation in the strict sense for the purposes of rating, but the rateable occupation remains in the other, who has the right of regulation and control….
In these circumstances, I have no difficulty coming to the conclusion that the exercise by the Duke and his tenants and licensees of the rights reserved to them is subordinate to the occupation of the company for the purposes of their undertaking…
- This refers to precedent cases, mentioned elsewhere by Lord Davy in the full decision, one of which was Rochdale Canal Co v Brewster (above).
In making the drainage company rateable for their particular purpose and the Duke and his tenants rateable for other purposes (in particular the tramway) the “Halkyn” case confirms that more than one rateable occupation can exist in respect of the continuing use of one piece of land for different purposes. Furthermore, it was not necessary in this case to confirm who is in overall “paramount occupation”, the respective particular uses and the nature of the occupations make them rateable in their own right for their own particular purpose: they are each in paramount occupation for their particular purpose.
Westminster City Council v Southern Railway Co (1936) HL 24 RIT 278: This leading case considered the question of when a part [a book stall] within a large hereditament [Victoria railway station] was “so let out as to be capable of separate assessment”. Lord Russell said (at p 326) that:
“The question in every such case must be one of fact, viz, whose position in relation to occupation is paramount, and whose position in relation to occupation is subordinate; but in my opinion the question must be considered and answered in regard to the position and rights of the parties in the premises in question, and in regard to the purpose of the occupation of those premises.”
He also went on to say (p 328) that:
“in each case the degree of control must be examined, and the examination must be directed to the extent which its exercise would interfere with the enjoyment of the occupant of the premises in his possession for the purposes he occupies them.”
The emphasis is that the facts of the each case need to be established very clearly where exclusivity is at issue; exclusive occupation for a particular purpose, paramount control and secondary (or subordinate) occupation are all dependent on the facts on the ground, taken together with the position, rights and relationships of the parties in occupation.
Hall (VO) v Darwen Borough Council and Silcock Bros. (Amusements) Ltd (1957) LT 51 R&IT 9; 2 RRC 329; Amies RA Vol 29 – 1958 p40: the corporation licensed the company ‘to occupy and use for the purposes of a fairground’ certain vacant land owned by the corporation. By the terms of the licence the company were to hold (and did hold) at least two fairs each year. The company had the prior right to use the land at any time, though the corporation could use the land when the company did not require it. The Lands Tribunal held the company to be in rateable occupation and considered that their right, although exercised infrequently, amounted to “constructive occupation”.
Additionally, holding two fairs a year, coupled with an agreement conferring the right to hold fairs over a reasonable period was enough to establish rateable occupation. (The emphasis here should be on the “right” to hold two or more fairs, not necessarily the seven-year licence.). The fact that they had the right over a reasonable period and exercised the right only twice was enough, coupled with the right to occupy more times if desired and subject to fourteen days notice. The rateable occupier in this case was the operator (the company) and not the owner of the site.
Gilbert (VO) v Hickinbottom & Sons Ltd (1959) 2 QB 240: This is a leading case on the identification of the hereditament and the following excerpt from the speech by Denning LJ (p248) is of particular interest:
“First, take a case where two or more properties are within the same curtilage or contiguous to one another, and are in the same occupation. In that case they are, as a general rule, to be treated for rating purposes as if they formed parts of a single hereditament. There are however, exceptional cases where for some special reason they may be treated as two or more hereditaments. That may happen, for instance… because one part is used for an entirely different purpose…”
If the particular purpose of occupation is so entirely different from another within the same curtilage (or contiguous), it may be considered a separate hereditament.
Newton Sand and Aggregates Ltd. v Huntley (1962) LT RA 87: The Crown granted two companies licenses [Newton Aggregates Ltd and Bartlett Bros. (Hauliers) Ltd], terminable by twenty-four hours’ notice, to work sand and shingle in defined areas of the foreshore of the River Teign. There was a limitation on the amount of mineral to be worked, a requirement not to cause injury to other users and to avoid the areas used by mussel fishermen, and to suffer occasional temporary interference to access from salmon fishers, water skiers and sailing boats.
It was held that the companies were in rateable occupation of their respective areas of the stratum of minerals because:
(i) the stratum was capable of being a separate rateable hereditament in the same way as a seam of minerals;
(ii) it was in the possession of the companies;
(iii) the possession was sufficiently permanent, having regard to the length of time it had been enjoyed, though terminable by twenty-four hours notice;
(iv)the rights granted to the companies were exclusive, having been enjoyed for a reasonable period, notwithstanding the grantor’s power to grant rights of occupation to other persons and to determine the licence at twenty-four hours notice.
The emphasis here is on the permanence of the occupation despite twenty-four hours notice allowed for termination. Additionally, separate hereditaments were established (each company being determined the primary user for their respective particular purpose); this is despite the limitations (or duties) placed on the companies and interference by other users.
Renore v Hounslow London Borough Council (1970) QBD RA 567: It was held that three car parking spaces allocated by a local authority to a company at a parking site were in the separate rateable occupation of the company .The spaces were marked ‘reserved’ and were entered through swivel bollards to which the company had the key. This was notwithstanding that their use was given up after six months – the use had started in the expectation that it would continue indefinitely. The emphasis being placed on the importance of establishing the “character” of the occupation, not just its length.
Pennard Golf Club v Richards (VO) (1976) LT RA 203: Involved a golf course on land which was subject to commoners grazing rights and was also traversed by public footpaths which created a nuisance and led to trespassing on the course. It was held that the occupation by the golf club was exclusive for their purposes. No other person was in rateable occupation of the golf course and, in so far as the exercise of the commoners’ rights may be said to be a competing occupation of the land, it was clearly subordinate (or secondary).
Bartlett (VO) v Reservoir Aggregates Ltd (1985) CA RA 191: Examined whether possession is exclusive for the particular purposes of the possession in question. Although the ratepayer water company were in occupation for the purpose of supplying water, by being employed in deepening the Queen Mary reservoir, occupation by Reservoir Aggregates Ltd was judged to be exclusive for the particular purpose of extraction of gravel by the ratepayers as beneficial occupier; the four requirements for rateable occupation were satisfied in respect of that purpose.
Wimbourne District Council v Brayne Construction Co Ltd and W H White & Co Ltd (1985) CA RA 234: Subcontractors extending a lake that was part of a fish farm, extracting gravel in the process, were instructed by contractors on terms that meant they paid £1 per ton for all material recovered to the contractors, who had the primary right to dispose of the gravel as part of an agreement with the fish farm owner. The Court of Appeal held that, despite the primary or paramount purpose of occupation being to excavate for the purpose of providing lakes and ponds for the fish farm, the subcontractors were in actual occupation of the hereditament for the ancillary (subordinate) advantage of winning the gravel.
Lloyd J referred to the principles of Southern Railways and the Kingswood Assessment Committee Cases said (p 244):
“Applying the same principles in the present case I would, for the reasons I have given, hold that the subcontractors’ occupation was exclusive for their particular purposes.”
This case emphasises the care needed to determine the particular purposes that may lead to a rateable occupation of land, before determining who is in paramount or primary occupation for that particular purpose. It also illustrates that occupation for different (often secondary/subordinate) purposes over the same land are capable of separate assessment, providing the tenets of rateable occupation are satisfied.
Stockley Park Consortium Ltd v Saul (VO) (1992) LT RA 209: A site was subject to a comprehensive scheme of reclamation and redevelopment to provide a district park, golf course and a science and commercial park. Substantial volumes of material were excavated, moved and deposited within the project site. The VO proposal to alter the valuation list related to “Quarry Land…”.
It was held that the entry in the list be deleted as the development was comprehensively planned and the occupation of the appeal site had but one purpose, namely, the development of the project site as a whole. It was a construction site and the subcontractors had no right to remove from the site and dispose of the materials for their own benefit.
This case shows the importance of looking at all the facts to establish the overall picture. If a particular purpose (in this case subcontractors moving material around a defined site) does not satisfy the tenets of rateable occupation, the next “level” or “layer” should be considered. Once a particular purpose is identified (in this case the development of the site) its rateability should be considered and a value attributed as appropriate. In the above case, the particular purpose was held to be a construction site, which was not appropriate for assessment [there being no beneficial occupier] so no assessment arose.
- Reference to precedent cases, mentioned elsewhere by Lord Davy
Practice Note 1: 2017: Land used for car boot sales, intermittent outdoor sales fairs and similar events (other than markets and livestock markets)
1. Market Appraisal
The National Association of British Market Authorities (NABMA) represents market authorities and operators throughout the United Kingdom. The majority of its members are local authorities and, as such, the organisation is in a position to assess the general performance of markets and local authority markets in particular. NABMA have considered the changes in the ten years between 2004 and 2014, and it has contributed to the contents of the market appraisal paragraphs in this note. Markets and car boot sites have many similarities; however, it should be noted from the outset that NABMA do not represent many operators of car boot sites.
Over the last ten years, NABMA has been responsible for commissioning various forms of research with regard to the markets industry and these have been recognised by government and other national agencies as being of significant value in considering the contribution and role of markets to the general performance of retail trading and high streets.
1.2 Car Boot Sales
Traditional and Local Authority Markets are covered in Rating Manual section 6 part 3 - section 630.
Car boot sales continue to be popular but there are some big differences in the nature of operations.
Whilst there has been an increase in the number of commercial car boot sales between 2008 and 2015 many are held on existing hereditaments, for example race courses, school sites, sports clubs etc.. The stand-alone car boot sites have increased in number also; these are largely located in fields and other un-adapted out of town locations. It is those sites with planning permission, hard standing and/or indoor facilities that are more resilient.
Even so, it appears that the ‘industry’ as a whole, including even the larger and more successful operators, have seen incomes decline between 2008 and 2015.
2. Changes From The last Practice Note
2.1 Land used for car boot sales
The last practice note encouraged VOs to examine rental evidence and produce a locally derived scheme of value that was based on the analysis of those rents against the gross receipts. Settlement work during the 2010 lists almost universally resulted in an approach that supported the scheme adopted for markets and market halls. Where rents were available, the relationship to the gross receipts indicated that the markets scheme was underpinned and reached a broad degree of acceptance.
This means that for 2017 rating lists there is a change in approach. From the outset, a scheme of valuation is provided for car boot sales on the same basis as that recommended for markets and market halls. This reflects the approach that settled during the life of the previous rating lists.
2.2 Other intermittent outdoor sales fairs and similar events
There is no change in approach to these classes; it is anticipated that rental evidence will underpin a locally derived Scheme of Value. (See Paragraph 4.2 below).
3. Ratepayer Discussions
The National Association of British Market Authorities (NABMA) represent many local authority and private operators of markets in England and Wales. Discussions have been held with NABMA and its views considered prior to the making of this advice. However, it should be noted that NABMA do not represent many operators of car boot sites.
4. Valuation Scheme
4.1 Land used for car boot sales
In principle a scheme based on a percentage of gross receipts is fairly robust, as RV’s should generally fall if any particular car boot sale is weathering lower receipts leading up to AVD.
The preferred method of valuation is the rentals comparison approach; the rents being analysed and applied by reference to the gross receipts paid to the market operator by the stallholders. The receipts should be adjusted as appropriate to ensure they represent the fair maintainable trade for the land used for the car boot sale. Comparisons with open air markets are considered to be appropriate as these are very similar in operation. Similarly, some covered car boot sales may warrant comparison with covered markets although care should be taken to compare like with like. As far as other comparisons are concerned, any comparables put forward that involve other land uses must be carefully considered to ensure they are in the same ‘mode and category of occupation’ as land used for a car boot sale.
The following range of percentages is recommended for the 2017 Revaluation:
Gross receipts (£)
Sub 50,000 (min if struggling)
10 - 15
15 - 22.5
50,001 – 100,000
15 - 20
20 - 25
100,001 – 250,000
20 - 22.5
22.5 - 30
250,001 – 500,000
22.5 - 25
25 - 30
500,000 and above
25 - 30
30 - 40
500,000 (Exceptional cases)
Notes – The use of the ranges recommended above
As a starting point, a percentage in the middle of the range should be adopted. However, there may be reasons to depart from the mid-way point.
Where making a decision on which end of the range of possible percentages to adopt, the following guidance should be considered. These seek to establish the possibility of lower or higher expenditure than might be ordinarily anticipated.
Factors that may indicate a lower expenditure than anticipated (resulting in a higher point in the relevant range being adopted)
Fewer trading days to produce a given level of receipts
Little competition from other markets or cheap shops
Good position, near e.g. busy main road junction or other focal point
Factors that may indicate a higher expenditure than anticipated (resulting in a lower point in the relevant range being adopted)
Stalls or storage provided by operator
Trading over several days to produce a given level of income
Position off the beaten track
Whilst increasing revenue on poor weather days, covered areas and other facilities provided have maintenance costs associated with them.
Where catering is provided by the operator rather than external catering providers paying a stall fee, the income from catering sales should be isolated and a lower percentage applied to it due to higher costs involved in producing that income stream.
Although it is hoped that the scheme of valuation detailed above will produce a consistent basis that becomes generally accepted, should challenges in a particular locality result in tribunal hearings it is important to obtain full details of all actual rents passing in respect of land used for car boot sales, markets and market places, where available and comparable, together with sufficient gross receipts and background information to be able to adjust and analyse them effectively.
It is anticipated that such rental comparable analysis, together with any comparable assessment evidence, should underpin the scheme of value above and therefore allow valuations to be made and defended in valuation tribunal on that basis.
This property is valued using the non-bulk server. The manual can be accessed here.
4.2 Other intermittent outdoor sales fairs and similar events
When making valuations for other intermittent outdoor sales fairs and similar events, it is anticipated that rental evidence will underpin a locally derived Scheme of Value. Where rents are analysed against relevant adjusted gross receipts, support for a Scheme of Valuation is available on the Non-Bulk Server (NBS). The NBS manual can be accessed here. Where rents are analysed on a price per m2, then it is more appropriate for the assessment to be produced using the Valuation Support Application (VSA) within The Rating Support Application (RSA).
Practice Note 1: 2010: Land used for Car Boot Sales, Intermittent Outdoor Sales Fairs & Similar Events (Other than Markets and Livestock Markets)
Car boot sales and other intermittent outdoor sales fairs and similar events are Unit classes. Responsibility for identifying, adjusting and analysing rents lies with the Unit, as does responsibility for ensuring effective co-ordination and valuation.
For further information regarding co-ordination, see Rating Manual: S6: Pt 1
The variety of circumstances found in practice means that complex issues of rateability and valuation might arise. As a result Units should actively co-ordinate the approach adopted as advised in the 2010 coordination Practice Note at Rating Manual: S6: Pt 1
2. State of Industry
Pressure on trade has varied throughout England & Wales, but more competition between car boot sale operators, and from a variety of other sales outlets has been experienced, affecting profit margins accordingly.
3. Valuation Support
It is anticipated that rental evidence will underpin a locally derived Scheme of Value. a. Where rents are analysed against relevant adjusted gross receipts, support for a Scheme of Valuation is available on the Non-Bulk Server (NBS). b. Where rents are analysed on a price per car space, or m2, then it is more appropriate for the assessment to be produced using the Valuation Support Application (VSA) within The Rating Support Application (RSA).
4. Rating List Entries
4.1 Car Boot Sales
For car boot sales, the description to be used for entries in a local rating list should be “Land used for Car Boot Sales” plus, where appropriate, “and premises”. The Scat Code of 147 “Land used for Car Boot Sales” with the appropriate suffix denoting responsibility, which is expected to be “S”, for specialist. The Primary Description Code in the rating list should be CM, and the default description overwritten with “Land used for Car Boot Sale”.
4.2 Outdoor Sales Fairs
For outdoor sales fairs, the description to be used for entries in a local rating list should be “Land used for Outdoor Sales Fair” plus, where appropriate, “and premises”. The Scat Code of 427 “Pitches for Stalls, Sales or Promotions” should be used, with the appropriate suffix denoting responsibility, which is expected to be “G”, for generalist. However, the Primary Description Code should be CX, and the default description overwritten with “Land Used for Sales Fair”.
4.3 Other Intermittent Fairs and Events
The same principle applies to other intermittent fairs and events. The Scat Code of 992 “Commercial Miscellaneous” should be used, with the appropriate suffix denoting responsibility, which is expected to be “G”, for generalist. However, the Primary Description Code should be CX, with the rating list description overwritten in order to assist in the identification of the hereditament being valued.
5. Other Information and Assistance
Should VOs require any other assistance in respect of this class, the main section of this Rating Manual entry (at RM S 6 Pt 3 187) should first be considered. For further advice, the standard protocols for seeking advice should be followed.