Part 3: appeals to the Valuation Tribunal
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
Part 3c: appeals to the Valuation Tribunal
1.1 The establishment of Valuation Tribunals
A requirement of Schedule 11 to the Local Government Finance Act 1988 (LGFA 88) was for the then Secretary of State to make regulations for the establishment of valuation tribunals. In England, these were the Valuation and Community Charge Tribunals Regulations 1989. In Wales, the Valuation Tribunals (Wales) Regulations 1995 apply.
1.2. The role of the Valuation Tribunal
In short, the role of a valuation tribunal is to list, hear and determine appeals concerning:
a. Valuations for non-domestic rating purposes including the question of validity of a proposal to alter rating lists, appeals against entries in the rating lists, appeals against completion notices, appeals against Form of Return penalty notices, and against values certified for transitional arrangements.
b. Valuations for Council Tax including appeals questioning the validity of a proposal to alter a band in the valuation list, proposals to alter the actual band in the list and completion notices for new or substantially altered properties.
c. Valuations for Land Drainage Rates.
d. Liability for Council Tax, general liability issues and against the imposition of penalties.
e. Appeals against completion notices
In the non-domestic rating context, appeals to the valuation tribunal can arise in five ways:
The failure of a person making a proposal against a local rating list entry and the valuation officer to agree that the proposal is validly made.
The failure by the maker and the valuation officer to agree a resolution of a validly made proposal.
An appeal against a penalty notice served by the valuation officer following a failure to comply with a statutory request to supply information.
The failure of person making a proposal against a central rating list entry and the Central Valuation Officer over the validity of that proposal.
Failure of a person making an appeal and the valuation officer to resolve an appeal against levels of value in a certificate for transitional purposes
This Section of the Rating Manual concentrates on items (1) and (2) (above), although there will be aspects that are applicable to all five sets of circumstances.
1.3 The Regulations Governing Valuation Tribunal Procedure
The procedural aspects relating to rating appeals are various.
In England, R2000 rating list valuation tribunal procedures are detailed in Regulations 35 – 50 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993, SI No.291.
Whenever reference to a specific regulation number is made without further qualification in this section of the Rating Manual, it refers to:
- In England - the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, SI 2009 No. 2269
- In Wales - the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 WSI No.758 (W.63)
1.4 Composition of the Valuation Tribunal
The regulations make no distinction between a particular tribunal that may hear a specific case and the group of people from whom the individual tribunal members are chosen: both are referred to as the valuation tribunal. In these instructions, the appropriate meaning is generally clear from the immediate context, but further clarification is provided when required.
The Valuation Tribunal Service (VTE) for England is financed and controlled centrally by the ODPM, (at present in Wales there is no VTS and the valuation tribunals remain wholly independent), whereas the local authority for the area appoints individual tribunal members. There is no set number as far as overall membership of a tribunal is concerned, their actual numbers being dictated by the amount of work that a tribunal has to deal with.
Each individual valuation tribunal (VT) is an independent and impartial body and its role is to determine appeals on the basis of the information put before it.
The Valuation Tribunal Service is the body corporate established by section 105 of the Local Government Act 2003, which contains the rules regarding membership:
- Individual members are appointed for a term of 6 years (but further terms are possible)
- Upper age limit of 72. (There is no age limit in Wales)
- No more than one third of the members must be billing authority members.
- Members do not need to hold any professional qualifications.
- Members are eligible for travel and subsistence payments and allowance.
- The tribunal will elect a president from among their number.
- A number of people will also be elected to chair individual tribunal sittings.
Three members drawn from the wider tribunal usually constitute the panel at a VT hearing.
1.5 The Clerk to the Valuation Tribunal
A clerk is attached to each tribunal and is responsible for:
- Co-ordinating Programming
- Listing appeals (delegated by the President of the VT)
- Arranging venues for the tribunal hearings
- Informing the parties of the hearing details
- Calling up members to preside over or constitute individual tribunal hearings
- Advising the members on the law and technical matters, both during the hearing and when they are reaching their decision
- The drafting and distribution of the tribunal’s decisions
- Any other administrative tasks which may arise
- The clerk should only advise the members on the law and technical issues when they are reaching their decision and should not seek to influence how the members interpret the evidence put before them
2. Notice of the hearing
The clerk to the tribunal is under a duty to notify, at least 14 days except that the VTE may give shorter notice –
(a) with the parties’ consent; or
(b) in urgent or exceptional circumstances
the date of the hearing, all relevant parties of the date, time and place appointed for the hearing (Regulation 30).
Where two or more appeals relating to the same property are outstanding then the appeals will be dealt with in the order in which the potential alterations would take effect (Regulation 5 (3)(b)). This only applies to appeals within a particular rating list. It is possible for appeals on a later list to be heard before those on an earlier list, eg a 2005 appeal before a 2000 appeal.
A similar notice must also be displayed at the VT office and the billing authority’s office. This notice must include the address of the place where a list of the appeals to be heard can be viewed, usually the VT offices.
The clerk to the tribunal is under a duty to notify, not less than 4 weeks before the date of the hearing, all relevant parties of the date, time and place appointed for the hearing (Regulation 27(1)).
Where two or more appeals relating to the same property are outstanding then the appeals will be dealt with in the order in which the potential alterations would take effect (Regulation 23(3)). This only applies to appeals within a particular rating list. It is possible for appeals on a later list to be heard before those on an earlier list, eg a 2005 appeal before a 2000 appeal.
A similar notice must also be displayed at the VT office and the billing authority’s office. This notice must include the address of the place where a list of the appeals to be heard can be viewed, usually the VT offices.
2.1 Lead Appeals
If two or more appeals have been made under regulation 13 of the Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009 regarding common issues of fact or law the VTE may direct that one or more of the related appeals be specified as a lead appeal and stay the other related appeals regulation 7 (1)(2).
When the VTE makes a decision in respect of the common or related issues, a copy of that decision must be sent to each party in the related appeals and the decision will be binding on them, unless within a month of issue a party applies in writing for a direction that the decision is not binding upon a particular related appeal regulation 7 (3)(4).
In respect of stayed appeals, the VTE must give directions providing for their disposal, or further direction regulation 7 (5).
Where a lead appeal is withdrawn prior to a decision by the VTE, the VTE must give directions as to whether another appeal should be specified as a lead appeal, and whether any direction affecting the related appeal should be set aside or amended regulation 7 (6).
3. Preparation and documentation
Given the time constraints that VOA caseworkers are under, it is advisable to identify the cases that are likely to require a formal tribunal hearing as soon as possible, thereby allowing the maximum preparation time.
Some cases, for example those turning on points of principle or law, will clearly be likely candidates for a VT (or, ultimately, a Lands Tribunal) hearing because of the issues involved. In such instances, it will be sound practice to involve the Technical Adviser in good time and seek specialist help at an early stage. Technical Advisers have access to a wide pool of expert advice and precedent and, even if this does not help resolve the immediate problem, it will ensure that the case starts on a sound footing.
3.1 Inspection Of The Appeal Hereditament
A caseworker presenting a case at VT must be familiar with all the valuation significant aspects of the appeal property prior to the tribunal hearing. The object of the inspection is to determine:
- The accuracy of the survey details, typically:
- Services etc
- The extent of any alterations
- The effective date of any changes
- Any disabilities affecting the property and their effect on the use and enjoyment of the property by the hypothetical tenant
- The nature of the locality and the characteristics of surrounding properties
- Further information regarding the grounds of appeal
- Any other factors which may affect the rental value of the appeal hereditament
A photograph of the appeal hereditament is perhaps one of the most effective ways to describe the external appearance of the property. Hence the advantage of including one, or more, photographs in a VT presentation.
Where the appeal relates to a MCC event, for example a road works disability, photographs will not only aid a recollection of the facts, but will also provide the VT with a clear idea of the extent to which the appeal hereditament has been affected.
3.2 Selection of Evidence
Only relevant evidence should be presented to the VT. Not only is irrelevant evidence of no value, it will also obscure that which is in point. In many cases it will suffice to select a representative sample of rental and or comparable assessments as evidence. This will save time in preparation and will avoid the VT from being over loaded with information.
It is essential that a full picture be given, so a caseworker should not select only those rents or comparable assessments most favourable to the VO’s case. To preserve the impartiality and integrity of the VO, the aim is to give the VT a fair picture of the relevant evidence upon which it may then base a decision. The VO’s evidence should therefore be unbiased, independent and objective.
When selecting evidence it is worth considering the relative weight that will be attached to rental and comparable evidence.
3.2.1 Suitable Rents
Some rents do not lend themselves to the support of a rating valuation. These include:
- Rents which do not, or cannot, be made to conform with the rating hypothesis, for example, turnover rents, or rents indexed to the Retail Price Index (RPI)
- Connected rents agreed between related persons or companies
- Sale and leaseback rents (see John Lewis & Co v Goodwin (VO) 1980 RA 1). Rents agreed under such arrangements may not reflect open market rental value (OMRV) for various reasons, typically:
- Financial arrangement whereby the rent reflects the cost of borrowing rather than open market value (OMV)
- Initial rent is higher than OMV to increase the value of the freehold
- Leaseback essentially a funding operation, with the rent being geared to profitability
- Rents which require a great deal of adjustment to make them accord with the statutory definition of rateable value. For example, adjustment may be required to take into account different repairing and insuring liabilities; rent free periods; premiums; stepped rents; improvements; overage; restrictive user clauses or start dates, ie rent set at some time distant from the antecedent valuation date (AVD).
But it is not a perfect world and it may be that the only available rental evidence will require a lot of adjustment. In such circumstances, the use of such evidence will be unavoidable.
3.2.2 Quality of Rental Evidence
The quality of rental evidence is dependant upon:
- How closely the rented property resembles the hereditament to be valued
- How closely the lease terms for the rented property resemble those of the hypothetical tenancy in the definition of rateable value
- How close the time the rent was fixed is to the AVD
As a general rule the less a rent has to be adjusted, i.e. the more closely it resembles the rent required by the statutory definition, the more weight it will carry as evidence of likely rateable value.
The reality is that non-domestic property is rarely let on an annual tenancy; responsibility for repairs and insurance is not always as envisaged in the hypothetical tenancy; tenants make alterations and improvements which are not reflected in the rent; landlords grant incentives to secure high headline rents and few rents are likely to have been fixed on the AVD. In rating, a “clean” rent can be rare.
3.2.3 New Lettings
Generally, these may be regarded as the most reliable category of rental evidence, although the reliability of such rents may be impaired where a lot of adjustment is required.
New lettings provide good evidence because they are freely negotiated between the parties in the open market and hence provide the best indication of open market rental value. However, not all new lettings will be perfect. Aside from adjustment, knowledge of the market and the locality will be help to identify those traders who have paid over the odds to secure a unit, or have paid an artificially low rent.
Anchor tenants tend to fall into the latter category. These comprise the key tenant(s) in a new development and a landlord, with a view to attracting other tenants to the development, will want to ensure that they take a unit to achieve this aim. As a class, anchor tenants tend to be in a strong bargaining position and as a result may be able to agree a low(er) rent.
3.2.4 Lease Renewals
Sometimes the provisions of the Landlord and Tenant Act 1954 apply when a rent has been set at renewal. So it will first be necessary to determine whether the rent was agreed by negotiation between the parties or was fixed by the courts in accordance with s34 of the 1954 Act when negotiations failed.
The more reliable rent will be the one freely agreed between the parties and where the lease terms, together the extent and treatment of any tenant’s improvements, have been disclosed. Rents fixed by the courts in accordance with s34 may be unreliable in the absence of knowledge about the details of the determination and tenant’s improvements.
Without full knowledge of the renewal agreement or determination, care will need to be taken before attaching great weight to rents fixed on renewal.
Interim rents should be avoided. These are rents set by the courts under the 1954 Act in the “interim” period between a lease ending and a new lease being agreed or determined. Whilst such rents are on a year to year basis (as is the definition of rateable value) they are unreliable because:
- They are not market rents, but are fixed by the courts based on the evidence presented
- They are the reasonable rent for a tenant to pay, which permits the court to exercise discretion and extend a measure of cushioning to the new rent which tends to favour the tenant
- The court is required to have regard to the terms of the old lease and the rent definition contained in s34 of the 1954 Act
The method of determining the interim rent has been altered by the Regulatory Reform (Business Tenancies)(England and Wales) Order 2003 when three statutory conditions are satisfied. These are:
- The tenant occupies the whole property.
- The relevant notice related to the whole premises
- The landlord did not oppose the grant of a new tenancy
In these circumstances the presumption is that the interim rent will be the same as the rent for the new tenancy, where these conditions are not satisfied or the tenant has declined to take a new lease ordered by the court then the valuation methods currently adopted under the 1954 Act apply. In any event these rents should be avoided as it is a presumption and also the caseworker will not have the full knowledge of the circumstances surrounding the interim rent.
3.2.5 Review Rents
The weight that can be attached to a rent fixed by review will depend upon:
- The contractual agreement between the parties
- The means by which the rent has been determined
Hence it is vital that all lease details are known, especially the rent review clause. To serve as good evidence for rating purposes, the review clause should specify that the review be to “open market value” or “rack rental value”, assuming vacant possession and a normal review pattern. An upward only review clause, for example, may prevent the rent dropping to OMRV and therefore remain at an artificially high level. Care should always be taken when considering the meaning of a review clause, as poorly drafted clauses can lead to unexpected results on review
The most reliable rent on review will be one fixed by agreement at rack/open market rental value, with 3 or 5-year periods between review, where there are no restrictions in the lease and no adjustments are necessary to account for tenant’s improvements.
The weight to be attached to a rent fixed by agreement will be greater than one determined by an independent expert or arbitration. Independent experts are entitled to bring their own knowledge to bear in reaching a determination, whereas arbitrators cannot stray outside the confines of the evidence presented.
3.3 Rents or Comparable Assessments?
For many years, the view expressed by Lord Justice Scott in the Court of Appeal case of Robinson Brothers (Brewers) Ltd v Houghton & Chester-le-Street Assessment Committee (1938 2All ER 79) prevailed. He said:
“When the particular hereditament is let at what is plainly a rack rent or where similar hereditaments in similar economic sites are so let, so that they are truly comparable, that evidence is the best evidence and for that reason is alone admissible; indirect evidence is excluded not because it is not logically relevant to the economic enquiry, but because it is not the best evidence.”
However, with the passage of time this view came under increasing criticism and in Garton v Hunter (VO)(1969 RA 11), Lord Denning stated that:
“We admit all relevant evidence. The goodness or badness of it goes to weight, and not to admissibility.”
This, and other decisions, enabled the Lands Tribunal (LT) in Lotus & Delta Ltd v Culverwell (VO) & Leicester City Council (1976 RA 141) to set out the following propositions as a properly established procedure for considering evidence in the rating context:
- Where the hereditament which is the subject of consideration is actually let that rent should be taken as a starting point
- The more closely the circumstances under which the rent is agreed as to time, subject matter and conditions related to the statutory requirements contained in the definition of rateable value the more weight should be attached to it.
- Where rents of similar properties are available they, too, are properly to be looked at through the eye of the Valuer in order to confirm or otherwise the level of value indicated by the actual rent of the subject hereditament
- Assessments of other comparable properties are also relevant. When a rating list is prepared these assessments are to be taken as indicating comparative values as estimated by the valuation officer. In subsequent proceedings on that list therefore they can properly be referred to as giving some indication of that opinion.
- In the light of all the evidence an opinion can then be formed of the value of the appeal hereditament, the weight to be attributed to the different types of evidence depending on the one hand the nature of the actual rent and, on the other hand, on the degree of comparability found in other properties.
- In those cases where there are no rents available of comparable properties a review of other assessments may be helpful but in such circumstances it would clearly be more difficult to reject the evidence of the actual rent.
The principles laid down in Lotus & Delta case have been followed in the following cases:
Hodges Ltd v Howells (VO) (1993 RA 236) looked at whether the actual rent agreed as from March 1988 (£12,000pa) should be adopted as the RV or, as the VO contended, whether this rent was not the rent which might reasonably be expected in the open market and the RV should be higher and in line with rents on other nearby shops and agreed assessments. The VO supported the assessment of £18,000 RV. The LT adopted the propositions from the Lotus & Delta case that indicates how conflicting rental evidence should be considered. The LT accepted the actual rent was less than the rent that might reasonably be expected to be paid in the open market and, following the evidence, determined £16,375 RV.
In Specialeyes plc v Felgate (VO) (1994 RA 338) the LT was asked to decide on the weight to be applied to various rental and tone evidence in order to determine the correct Zone A rate to be applied to a shop, and hence its RV.
The LT considered that as the rents of the appeal hereditament, together with the immediately adjoining shops, were agreed between one landlord and one firm of surveyors representing most of the tenants, the weight to be applied to this evidence was reduced (as it was effectively one transaction).
The LT examined other rents in the street away from the immediate shop and divided these into 3 categories:
Rents agreed between 1986 and 1987. The LT found the evidence helpful in showing an upward trend in rental values over the period but otherwise attached little weight to them due to the need to adjust the rents to 1/4/88 levels.
Rents close to the AVD. The LT paid particular attention to these as indicating the correct level of value and showing the appeal hereditaments rent to be at the lower end of the band of values to be expected at the AVD.
Rents after the AVD. Both parties accepted these rents as admissible but the LT only considered those close to the AVD due to the need, because of the rapid rise in rents in 1988/89, to make large and uncertain adjustments to relate them to AVD levels.
The VO attached significant weight to agreements on value in the street and considered a tone of the list was established. Both parties accepted that the date of the hearing was the correct date for ascertaining whether a tone of the list was established. At this date the LT noted 39 assessments had been agreed, 9 appeals were outstanding and no appeals had been made on 27 shops. The LT regarded the tone as established.
In Marks Trustees of T N Marks (Dec’d) v Grose (VO) (1995 RA 49) the rent passing on the appeal hereditament had been reviewed to £14,500 on 25 December 1987, with the rateable value in the list being £24,600.
The LT concluded that given the rents on surrounding properties and the amount of adjustment required to the appeal rent, the latter was less than might reasonably have been expected to have been paid at 1 April 1988.
The Tribunal felt that there had been sufficient appeal activity by way of agreements with agents, occupiers and valuation tribunal decisions to establish a tone of the list at £350 zone A. Considerable weight was given to this established tone.
The resultant RV of £24,000 reflected allowance for the irregular shape of the retail area and masking.
In Jafton Properties Limited v Prisk (VO) (1997 RA 137), the appeal hereditament comprised office accommodation in the Smithfield area close to the City of London.
There were two valuation points at issue, the first was the correct RV at the 1 April 1990 and the second was the effect on rateable value of oversupply of office accommodation in the locality.
The LT held that although the rents on the appeal hereditament could be taken into account as the starting point, they were not conclusive, nor were they superior evidence to which the greatest weight should be given in arriving at the appropriate RV. The rents on the appeal hereditament were all for short fixed terms and lacked the reasonable expectation of continuance, an essential part of the rating hypothesis.
The correct time for establishing whether or not the tone of the list had been established was immediately prior to the start of the hearing. It was held that the assessments of comparables established the tone of the list and deserved significant weight given the inadequacies of the rental evidence
3.4 Inspection Of Comparables
Ideally, all properties that are to be relied upon as comparables, whether in terms of their rents or agreed assessments, should be inspected by the caseworker. However, it is recognised that time pressures may prevent this.
As a bare minimum, there is a need to be sure that that all the facts relied upon in the analysis of rents or agreements are correct, e.g. have accurate survey details been used or has the fullest possible information regarding the rent been obtained? Etc.
Establishing and checking the facts at this stage could well avoid any “nasty surprises” at the VT hearing.
Photographs of comparables may also be beneficial, particularly if there is a need to highlight similarities (or, indeed, differences) between properties
3.5 Agreement of facts
During discussions prior to a VT hearing, the aims of a VOA caseworker should be to:
- Agree all matters of fact
- Obtain written confirmation of the rental information on the appeal hereditament where there is no FOR or it is out of date
- Review the evidence, confirm it is reliable and fully supports the VOA valuation
- Obtain the valuation, evidence and case for the other side (preferably in writing) and give it consideration
- Agree all rental evidence, together with its adjustment and analysis
- Isolate the matters in dispute and assess the strengths and weaknesses in the case for each side
- Establish where, if any, concessions might be made (having regard to the ‘Right First Time’ policy) and fully explore the possibility of reaching agreement
- Determine (in the absence of an agreement) the VOA valuation to be put before the VT and prepare the necessary documentation and presentation
If matters of fact have not been agreed prior to the hearing, the task of the VT will be made very much harder and their ability to reach a clear decision much hampered. There is a duty on the VO caseworker, whether appearing as an expert or not, to ensure that such difficulties are avoided (or, at the very least, minimised).
To avoid unnecessary challenges during the VT hearing, it is good practice to agree before the hearing issues of fact likely to be given in documentary or verbal evidence.
Whilst it is not possible to produce a definitive list of items that should be agreed (because circumstances will vary from case to case, the following are common examples:
- The unit of assessment – what is the hereditament?
- The material day
- The effective date
- Plans and documents
- The basis of measurement to be adopted as per the RICS code of measuring practice
- The area of the appeal hereditament on this basis - or alternatives where the basis is not agreed
- The services and amenities enjoyed by the appeal hereditament
- Any specific relevant matters to be taken into account at the material day
- Actual and “Notional” breakdown between domestic/non-domestic uses. Whilst the notional non-domestic use is not strictly a matter of fact, efforts should be made to resolve this issue if possible
- State of repair where at issue and cost of remedial work
Whilst it may be unusual to produce a formal statement of agreed facts at the VT stage, a blank (i.e. without heading or partisan marking) text sheet can be used to provide the tribunal with a concise summary of the points that are agreed and those that are at issue.
The sheet need only be brief, but its inclusion will clarify for the VT exactly, upon which points they are required to reach a decision and to avoid time being spent on issues, which are not in dispute.
Agreed facts and areas of dispute
- Agreed facts
- Areas Agreed on site on 26th Jun 2002
- Relativities GF 3 zones and a remainder, stores A/10. First floor offices A/15
- Material day 13th June 2005
- Effective date 1st April 2005
- Description Shop and Premises
Issues to be determined by the valuation tribunal
- Zone A £/m2
Percentage addition for return frontage
Where it is likely a case will be heard it is good practice to give the clerk to the VT an overview of the points at issue and details of any case law or regulations which will be referred to. After all, the role of the clerk is to advise the VT on legal and technical issues and this is more easily achieved with an awareness in advance of the case law and statute/regulations likely to be relied upon by the parties to the appeal.
3.6.1 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, regulation 17 (3)(4)(a)
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. The VTE may admit evidence or exclude evidence where it was not provided within the time allowed by a direction.
It is good practice for the Regulation 17 Notice to identify:
- The document (s) which contain the information
- The hereditament (s) to which the document (s) relate
- The name and address of the person providing the information
- A summary of the lease terms including the rent, dates of rent reviews and the repairing obligations.
3.6.2 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. 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 must identify:
- The document (s) which contain the information
- The hereditament (s) to which the document (s) relate
- The name and address of the person providing the information
- A summary of the lease terms including the rent, dates of rent reviews and the repairing obligations.
3.6.3 The Service of Notices
In England, for R2000 rating lists, Regulation 50 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (internal hyperlink) governs the service of notices.
For R2005 and R2010 regulation 22 of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009, (internal hyperlink) applies.
In Wales, regulation 40 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 WSI No758 (W.63) (internal hyperlink) applies.
Regulation 22 [England] and regulation 40 [Wales] provides that a notice may be served by:
- Delivering it to the person on whom it is to be served (or any authorised agent), ie by hand.
- Sending it to the person (or agent) by electronic communication, i.e. by fax or e-mail
- Leaving it at, or forwarding it by post to:
a. the usual or last known place of business of that person, or
b. in the case of a company, its registered office, or
c. the usual or last known place of business or registered office of any authorised agent
- 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.
- 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.
Any notice to be served on a VO may be served by:
- 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
- Delivering it or sending it to the VO’s office by post or electronic communication.
The individual e-mail addresses and fax numbers allocated for the purposes of regulation 40 for each VOA Group are listed in the “Where to find us” sections of the VOA Internet site and in the same section of the VOA intranet (for VOA caseworkers. Any of the location address in the GVO’s Group is valid for this purpose.
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:
- 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)
- 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.
3.6.4 Upon Receipt of a Regulation 17 Notice [England] Regulation 31 Notice [Wales}
The recipient of a Regulation 17 or 31 notice, provided that not less than 24 hours notice is given, may:
- Inspect the documents or other media in or on which such information is held
- Make a copy of information from the documents
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.
Regulation 17 (4)(a) and Regulation 31 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:
- The person who made the proposal
- The occupier at the date when the proposal was made
- The ratepayer at the date of agreement
- Any interested person or relevant authority:
- Who at the time the proposal was made would have been able to serve the proposal
- 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
- 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
However, in the majority of cases a Regulation 17 and a Regulation 31 notice will only need to be served on the person who made the proposal.
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.
3.7.1 General Comments on Documentation
The written evidence should compliment and augment the verbal presentation of the case – both are crucial to a persuasive argument. But persuasive should not equate to partisan: to be impartial, the VOA caseworker must provide the VT with a fair picture of all the relevant evidence.
Clearly a balance needs to be struck when deciding upon the amount of documentation to produce. If the VT is not to be swamped with unnecessarily large amounts of information in the limited time available to it and yet still receive a full picture of the issues it must decide upon, the VOA documentation should be:
- Relevant - e.g. if rental analysis is not at issue, is there a need to include all the rental analysis sheets? Will a summary suffice?
- Or, if the main space rate is not at issue, is there a need to include evidence to prove the main space rate?
- In short, restrict the VO evidence to the resolution of the disputed points.
- Concise and to the point – it is possible to maintain the scope (width) of the evidence necessary to remain impartial by considering the format in which the evidence is presented.
The overall aim should always be to arrange the documentation in a structured and logical order that mirrors, and augments, the way the case will be presented verbally.
Naturally, the amount of documentation will vary from case to case. The following provides an example of how a case could be ordered where a comprehensive set of documentation is to be used:
- Contents page
- History of appeal
- Summary of agreed facts and areas of dispute
- Description and location of appeal hereditament
- Location plan
- Photograph (s)
- Rental evidence summary
- Rental evidence detail
- Photographs – e.g. properties from which rental evidence is derived, or as required
- Comparable assessment summary
- Comparable assessment detail
- Photographs - Comparable properties
- References - case law, statute, or statutory instruments
- Summary of the VO case for VT & skeleton legal argument
- Appeal hereditament valuation & Expert’s Declaration
- Decision VO is seeking
3.7.2 Defence Support Package (DSP)
The Defence Support Package (DSP) is available to assist in the production of this documentation, and is specifically designed to support the entire defence process from first correspondence onwards.
DSP was designed by caseworkers with experience in presenting cases at VT. Their overarching aim was that the software should be intuitive to work with and produce quality VT presentations.
The new defence process requires that a properly considered early decision - either withdrawal or agreement - should be sent to the appellant with the opening correspondence, together with any supporting evidence. The creation of “bundles” of evidence at this early stage means that the selection of comparables for use in the presentation, and the issue of Regulation 31 notices is much more straightforward than with DOTL.
The assembly of the complete presentation has been simplified through the use of more sophisticated IT support
DSP VT Presentation features include:
- Contents can be varied and ordered to suit the subject case.
- DSP writes back to RSA so there is no duplication of work with valuation changes and correction of discrepancies in rental adjustment and analysis.
- Easy to produce Regulation 31 Notices that can then be posted or emailed.
- The components of a presentation can be saved for future recall.
- All outputs can be previewed individually from a single screen.
- External documents can be uploaded for output with the presentation.
The presentation contents are:
|Standard Documents:||Additional (External) Documents:|
|Header Sheet||Copy of Proposal|
|Contents Page||External Appeal Valuation (Excel / Word / Adobe)|
|Appeal History||External Comparables (Excel / Word / Adobe)|
|Statement of Case||Leases|
|Appeal Valuation||Location plan|
|Comparable Valuations||Floor Plan|
|Assessment Summary||Other Documents - any other supporting documentation e.g. witness statement|
A number of centrally produced “defence scripts” have been created for use as a means of easily identifying and incorporating relevant information in VT presentations, such as case law, statutory provisions and valuation approach. The desired section can be copied and pasted into the statement of case or in a separate document, as circumstances demand. They are not intended to replace the source documents, such as the Rating Manual Practice Notes, Ryde on Rating etc, but used in conjunction with them. The scripts will help to ensure consistency of defence.
Once assembled, the presentation can be printed at the click of a mouse button, ready collated.
3.8 Preparing the VO Case
By this stage, it should be clear what is agreed and what issues remain to be resolved by the VT, and a start can be made on the VO case presentation. At the outset, consider:
- The strengths and weaknesses of the VO case
- The arguments / contentions put forward by the appellant
- Any other arguments / contentions that may be raised on the day
- Possible questions or lines of inquiry which may arise from the appellant and the VT
- How will the VO counter these arguments or respond to the questions?
To be most effective, a verbal presentation must be clear and confident. So, as with any presentation:
- Tell the VT what you are going to say: INTRODUCTION
- Say it: MAIN BODY
- Tell the VT what you have said: CONCLUDE
Preparing what it is intended to say prior to the hearing will crystallise thoughts, boost confidence and help anticipate possible lines of counter-argument and questioning.
Drafting will help to structure a case and break it down into the advocate and expert witness roles. There is much merit in having a hard copy of the essential elements of the VOA case and skeleton legal argument as part of the VO’s “bundle” of documents. The suggested outline below is an example that can be followed in the majority of cases:
- Introduce the parties.
- A brief account of the history of the appeal including reference to the material day and effective date arising from the proposal
- A brief reference to the main points at issue and the contentions to be made
- Description of the settings of the hereditament in the locality and its immediate surroundings
- Description of the appeal hereditament, its areas, use and condition if relevant
- Evidence to be given as expert witness
- Reference to the rental/sales/comparable evidence, describing the property and locations
- Details of the rents/sales/assessments and their adjustment and analysis - if necessary
- Details of any other evidence to be given by witnesses called by the VO
- The contentions of the VO on any legal issues involved
- Conclusions drawn from the evidence, legal issues and how the valuation is supported by the evidence
- Reply to the points made by the other side
- Summarize the points made
- Concluding statement
- Contend for the value and list entry put forward, or
- Seek a dismissal
3.8.2 A Checklist
On the day, the items that need to be taken to the VT will vary depending on the case. The following are some of the more common items that may be needed:
- Case and core file for the appeal hereditament
- Core files for comparable/rental evidence properties
- Original rent returns containing information to be referred to, together with a copy to be submitted to the VT should they request to see a copy
- VO documentation in sufficient numbers for each VT member, the Clerk and all parties attending, and a spare
- Ryde on Rating & The Council Tax
- Statute, statutory instruments and case law extracts as appropriate
- Code of measuring practice
- Signed delegated authority to represent the statutory Valuation Officer.
3.9 Discussions with Ratepayers’ agents are on a Without Prejudice Basis
Judicial hearings should be seen as a last resort and, indeed, the Courts are keen to encourage parties to talk and resolve their differences without a hearing. Naturally parties could worry that an admission or offer, made with the aim of resolving by way of compromise during negotiations, could be referred to at a hearing if talks break down. The Courts, therefore, usually regard discussions entered into with a view to resolving a dispute as inadmissible in evidence. This is the case whether or not the parties have formally headed correspondence or discussions as “without prejudice”.
In Rush & Tompkins Ltd. v. Greater London Council 1988 the House of Lords considered the “without prejudice” rule for negotiations was to encourage litigants to settle their differences rather than litigate. It applied to all negotiations genuinely aimed at settlement, whether oral or in writing, and prevented them being given in evidence. The use of the words “without prejudice” was held not to be essential where it was clear from the surrounding circumstances the parties were aiming to settle a dispute.
Therefore when preparing a case for VT, caseworkers need to remember that discussions with ratepayers or their agents are assumed to be on a without prejudice basis as they are aimed at settling a dispute. This is whether or not any correspondence has been headed “without prejudice”.
Neither party should refer to the content of discussions held prior to the hearing. This includes correspondence relating to provisionally agreed figures where parties indicate they no longer consider agreement should be reached at those figures. It is open, and proper, for ratepayers and agents to change their minds on reflection, or with the benefit of further evidence, and not be embarrassed at a hearing by revelation of their provisional agreement to figures now considered incorrect.
VOs should not make offers that they are not prepared to maintain at valuation tribunal.. Nonetheless, such offers are without prejudice and exceptionally may be withdrawn where the VO considers the original offer was wrong.
The presumption of without prejudice does not mean that anything said cannot be used in evidence. It has limitations:
- Parties can waive the privilege providing it does not compromise the other party’s privilege. So the contents of a without prejudice letter by Party A can be divulged at a hearing by Party A providing the contents do not refer to an admission by Party B which would be regarded as “without prejudice” e.g. an original offer by Party B in a letter by Party A making a counter offer.
- Strictly only matters of admission are protected. “Without prejudice” communications can be referred to for other purposes e.g. in explaining a delay which on the face of it appears unreasonable to a VT or the LT. So it may be permissible to explain that the VO had understood an agreement had been reached though the agent has now re-considered and this is the reason for inaction on the VOs part but without mentioning the actual figure previously agreed.
- The privilege is not allowed to create injustice or is being abused (cases where this is considered to be occurring should be referred to CEO (Rating) for advice.
Cases where VOs consider an agent is breaking the without prejudice rule should be reported to the Technical Adviser for advice.
4. Written representations
It is possible for an appeal to be resolved by the parties (i.e. both the VO and the appellant) submitting to the VT written representations that set out their respective cases. All the parties to an appeal must agree to this course of action, but the VT still has the right to order that the appeal be heard at a hearing.
It would be very rare for the VO to agree to a hearing by written representation for the simple reason that such a hearing does not allow for the evidence to be fully tested. Cases where a VO wishes to have an appeal heard by written representation must be discussed with the Technical Adviser.
Appellants can still send in written details of their case for the VT to hear, rather than appearing in person, but a VO should always attend a VT hearing.
Under Regulation 38 of the 2005 Regulations for Wales or Regulation 4 of The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, an appeal can be dealt with by Arbitration. This approach is detailed in Rating Manual: Volume 1 Section 6.
There are a number of disadvantages with arbitration and in practice the method is virtually never used. A full hearing ensures that all relevant issues are aired and decisions often provide guidance that may be helpful elsewhere. Also, the appointment of an arbitrator will involve costs and there are in effect little or no rights of appeal following an arbitrator’s decision.
6. Pre-hearing review
Occasionally, despite the best endeavours of the VO, it is found that the appellant is unable, or is not prepared, to engage in constructive discussion. In these circumstances, or where fundamental differences exist on a legal interpretation, then the possibility exists for the VO to seek a Pre-Hearing Review under Regulation 26 in Wales.
A review can be initiated by any party to the appeal, or by the chairman for that particular VT, after providing no less than four weeks notice to the parties. The object of a Pre-Hearing Review is to clarify the issues to be dealt with by the VT and to ensure that all the parties to the appeal make such admissions or agreements as ought to reasonably be made in relation to the proceedings. It is considered that an application for a review should be made in difficult circumstances and particularly if the case itself involves complex issues of valuation or law. Such a review is an excellent way of clarifying issues and getting a proper understanding of the opposition’s case. In the “Right First Time” environment, it will be an increasingly useful tool for VOs. Whenever possible, make an application for a pre-hearing review in good time, especially if the appellant is not prepared to engage in constructive discussion.
Because of the notice required in advance of any such review, it is likely that the substantive appeal, for which notice of hearing has already been given, will have to be postponed until the review has been conducted.
Regulations 6(e) and 6(f) in England permits the VTE to deal with an issue as a preliminary issue and hold a hearing to consider any matter including a case management issue; the period of notice must be 14 days except in the case where the parties consent to shorter notice or in the case of urgent or exceptional cases, Regulation 30(2).
7. The structure of the hearing
7.1 Conduct of the Hearing
The hearing itself is generally informal, with the following people attending:
- 1 chairman presiding and 2 members
- Clerk to the tribunal
- The Valuation Officer
- The parties to the appeal
Providing all the parties agree, if one of the members fails to appear, cases can be heard by only two VT members.
Any party to an appeal has the right to be represented at a VT, perhaps by a family member, a surveyor, a solicitor or even counsel.
Hearings are open to the public, although the VT can order a private hearing (in camera) where it is satisfied that the interests of a party would be prejudiced by a public hearing. Typically, this could happen if trade details formed a key element of the valuation.
If, other than the VO, all the other parties to an appeal do not appear before the VT, the appeal may be dismissed without further ado (regulation 30(4)) in Wales.
In England if a party fails to attend a hearing the VTE panel may proceed with the hearing if considers that it is in the interests of justice to proceed with the hearing and it is satisfied that a party has been notified of the hearing or that all reasonable steps have been taken to notify the party of the hearing, regulation 32. Or the appeal may be dismissed.
The VT has the power to require any witness to give evidence on oath or by affirmation, although this is rarely done.
A hearing may be conducted by a VT in any manner that it feels will enable an appeal to be heard fairly. However, unless the VT decides otherwise, where the appeal is against an invalidity notice or a rating list alteration by the VO, the VO will start proceedings and put the VO’s case first. Other cases are heard in such order as the VT decides, but the inference is that they will normally call for the other side to begin the hearing. This will not always happen, in particular where un-represented ratepayers are involved, and the VO should be prepared for either eventuality.
The VT may ask questions regarding the evidence and information put forward by the parties and the parties can cross-examine in respect of each other’s case.
Notwithstanding the bias towards informality, it is expected that VTs will follow the normal structure of a hearing in a court of law where appellants and respondents are involved. The appellants put their case first, followed by the respondent and the appellants are allowed the last word in reply and a concluding statement.
7.2 Stages of the Hearing
The hearing of the appeal will usually break down into the following stages:
Party to speak first / Appellant Party
a. Opening statement. Statements of Agreed Fact. Submissions on points of law.
b. Gives evidence or calls expert and other witnesses as necessary.
c. Cross-examination of expert and other witnesses (by the other side).
d. Where the person taking the case also gives expert evidence (eg the VO, with a dual capacity role), practice may vary as to when the cross-examination takes place. It may be more convenient to the VT to allow the examination after the party has completed all submissions. Be guided by the practice of the VT, but always make it clear when evidence is completed, so that cross-examination can take place at this stage.
e. Re-examination of expert and other witnesses (by the party that called them).
It may occur in cross-examination that the witness was not permitted to answer a point fully and/or there is a need to clarify an answer that was given. The VT should provide the opportunity for a witness to speak further following cross-examination. If there is an important evidential point to be made, it should be dealt with at this point, before formally moving to the next stage.
a. Submissions on points of law and a brief summary of the evidence given in the support of the contentions.
b. Make the point that a concluding statement will be made.
Party to speak second / Respondent Party
a. Opening statement - this can be quite brief if the history of the appeal and the issues have been adequately covered by the party beginning the hearing. However, a brief outline of the opposing case, and the evidence to be given, should be made.
b. Submissions, Evidence, Cross-Examination and Re-examination will follow as in 2(a)-(d) above.
c. Submissions on points of law, replying to the other party’s case.
d. Concluding Statement putting forward the value/entry contended for.
Party beginning the hearing
a. Reply to the points made by the other party
b. Concluding Statement putting forward the value/entry contended for.
The Appellant party speaks both first and last and may have the advantage of setting the scene and concluding the matter.
Cross-examination should be treated as an opportunity to test the evidence of the appellant. Care should be taken however not to ask questions that allow appellants to merely restate their case.
The Respondent (usually the VO) may only have one opportunity to speak. It should, therefore, be made to count. The Closing Submission should draw all the strings of the case together and should (VT policy permitting) always be done.
8.1 The burden of proof
There are two aspects to the burden of proof:
- Persuasive or legal burden – the person making an assertion must prove it
- Evidential burden – each person must prove the facts being put forward, usually by evidence.
When required to begin proceedings, the VO should seek to discharge the burden of proof to the satisfaction of the VT.
When the ratepayer begins, however, the VO case should not normally rest on the failure of the ratepayer to discharge the burden of proof, although the attention of the VT may be drawn to this fact if the VO considers it necessary. Technically, the proposer is always the appellant and the VT should consider whether the case for the appellant has successfully been proven against the VO’s defence. However many VTs see the roles the other way around, with the VO having to prove the existing RV correct.
8.2 Types of Evidence
Evidence can be:
- Oral testimony
- Statements in documents
- Tangible things, e.g. photographs
8.3 Weight of Evidence
The Weight of Evidence, or its persuasive value, is often a matter of common sense. It is affected by:
- Its consistency or inconsistency with other evidence
- The demeanour credibility and plausibility of the witness
- The potential for inaccuracy and unreliability
- The extent to which it is contradicted by the evidence of the other party
Hearsay is a statement of fact either recited by a witness as the statement of another or was not perceived first hand by the witness. The witness may have been told about the information by another party or read an account about it. This is in contrast to direct evidence, which the witness has personally observed or experienced. Under Regulation 30(14) in Wales a VT:
“…shall not be bound by any enactment or rule of law relating to the admissibility of evidence before courts of law.”
And by Regulation 17(2)(a) in England the VTE may
“…admit evidence whether or not the evidence would be admissible in a civil trial in England;”
That is, the tribunal is not precluded from taking into account hearsay evidence. However, such evidence by its nature must be treated with caution. Should a ratepayer introduce hearsay evidence, the VO must:
- Ensure the tribunal is aware that what is being put before them is hearsay.
- Stress that the accuracy or otherwise of such evidence cannot be verified and must therefore be treated with caution.
Evidence on oath
Any of the parties to an appeal are entitled to ask that evidence shall be given on oath or affirmation and the tribunal has discretion to agree or refuse. VOs should not normally make such applications.
If the tribunal requires evidence to be given on oath or affirmation in a case in which the VO appears as both advocate and witness, it will generally be convenient to take the oath or make affirmation at the outset. If the VO is on oath or affirmation, care should be taken during the presentation of the case to differentiate between advocacy and expert evidence.
8.5 Rating Lists - Proof of Contents
Regulation 32 Wales, Regulation 17(12) England, provides that entries in rating lists may be proved by a copy of it, or of the relevant part, purporting to be certified to be a true copy by the statutory valuation officer.
Assessments of comparables in the rating lists can usually be included in schedules of agreed facts between the parties. Should this not be the case and difficulty is envisaged, certified copies of the rating list or part thereof should be prepared prior to the hearing, to be produced as required.
An advocate is someone who pleads a case to the best advantage of the client. There are aspects within the role of an advocate that need to be borne in mind by the VOA caseworker. An advocate is:
- Partisan - not tied by impartiality
- Not under oath
- Not a witness, expert or otherwise
9.2 The role of an advocate
When appearing before a court, an advocate:
- Opens the case by making reference to:
- The purpose of the appeal
- Any facts agreed
- Any facts not agreed
- Legal argument
- The valuations and the basis for them - refer to the expert witness (or other witnesses) who will give evidence (identifying where there are points of agreement and points of disagreement)
- Any evidence and or comparables in support of the case - the advocate only makes reference to the evidence that will be presented at this stage.
- Calls witness(es) to give evidence of fact (or, if an expert witness, of opinion) for own side
- Puts questions to these witness(es)
- Puts questions to the witness(es) (for the other side) i.e. cross examines them after they have given evidence
- Following cross examination of own witness(es) by the other side, puts further questions to own witness(es), if necessary
- Makes a closing statement, summarising the issues in dispute, key points of own case and RV that is being contended for on the basis of the evidence presented
10. Advocate and witness – the dual role for the VOA
When appearing before a VT, a VOA caseworker is likely to be both advocate and witness at different stages of the hearing. It is vital to be able to distinguish between these roles.
In simple terms, the role of advocate and witness fit into the following structure:
- SAY WHAT ONE IS GOING TO SAY (INTRODUCTION) : ADVOCATE
- SAY IT (REFERENCE TO EVIDENCE) : WITNESS
- CROSS EXAMINATION AND PANEL QUESTIONS : WITNESS
- SUBMISSIONS ON THE LAW : ADVOCATE
- SAY WHAT ONE HAS SAID (CONCLUSION) : ADVOCATE
Going back to the likely series of events in a VT outlined in paragraph 3.8.1, let us examine those aspects that involve advocacy and those that are evidential and involve a witness:
- Introduce the parties - ADVOCACY
- A brief account of the history of the appeal including reference to the material day and effective date arising from the proposal - ADVOCACY
- A brief reference to the main points at issue and the contentions to be made - ADVOCACY
- Description of the settings of the hereditament in the locality and its immediate surroundings - WITNESS
- Description of the appeal hereditament, its areas, use and condition if relevant - WITNESS
- Evidence to be given as expert witness - WITNESS
- Reference to the rental/sales/comparable evidence, describing the property and locations - WITNESS
- Details of the rents/sales/assessments and their adjustment and analysis (if necessary) -WITNESS
- Details of any other evidence to be given by witnesses called by the VO - WITNESS
- The contentions of the VO on any legal issues involved - ADVOCACY
- Conclusions drawn from the evidence, legal issues and how the valuation is supported by the evidence - ADVOCACY
- Reply to the points made by the other side - ADVOCACY
- Summarise the points made - ADVOCACY
- Concluding statement - ADVOCACY
- Contend for the value and list entry put forward, or seek a dismissal - ADVOCACY
As a witness, the VOA caseworker must be truthful about the facts that are being given in evidence and complete in the coverage of all matters relevant to the appeal being heard.
To differentiate between the advocate and witness roles when presenting a case, it may help to announce, at the appropriate stage, that a change is about to take place. Thus, at the end of advocacy, one can state that evidence is going to be presented next. Similarly, on completion, stating that the evidence is concluded will indicate to the VT that, as a witness, one is available for questions and/or cross-examination.
11. The expert witness
The essential difference between witnesses to fact and an expert witness is this:
- Witnesses to fact can only give evidence of what they did or their senses told them. For example, what a referencer saw during an inspection.
- An expert witness may, additionally, express an opinion to the court.
To be an expert witness is a privilege and the status can only be achieved by study, qualification or experience (and, often all three) in a specialised field of endeavour. For Valuers, the duties and responsibilities of the role are comprehensively set out in the RICS booklet Surveyor Acting as Expert Witness (Practice Statement and Guidance Notes). This booklet should be read by all caseworkers that aspire to become expert witnesses.
The responsibilities of an expert witness include the following:
The primary and overriding duty of a surveyor is to the judicial body to which the evidence is being given.
The duty is to be truthful as to fact, honest as to opinion and complete as to coverage of relevant matters. The duty is the same if the surveyor is giving evidence to a judicial body whether or not on oath.
The surveyor’s evidence must be independent, objective and unbiased. In particular, it must not be biased towards the party who is responsible for instructing or paying the surveyor. The evidence should be the same whoever is instructing the expert or is paying for the evidence.
The duty applies as much to the preparation of a statement of opinion intended to be used as part of written representations in an arbitration or elsewhere where oral evidence may not be given, as to a statement intended to be used at a hearing before a judicial body.
The responsibilities towards the expert’s client include:
- Assembling and preparing the evidence in a competent manner
- Formulating reasoned opinions
- Co-operating with other professional advisers
- Presenting the evidence accurately and clearly
11.2 The VOA Expert Witness
For a VOA caseworker, it is possible that evidence of fact and the evidence of an expert may be given within a single case. Evidence of floor areas, constructional details and location will all be issues of fact. Opinions about levels of value will be the domain of the expert witness. When giving expert evidence, it is essential to explain the methodology, rationale and analysis that led to a conclusion, rather than just baldly asserting an opinion without further support.
In this context, the case of H Banks v Speight (VO) 2005 RA 61 illustrates the importance for surveyors of keeping in mind their duty to the tribunal and how surveyor experts should seek to present themselves and their evidence. Whilst the Lands Tribunal did not at all doubt the expertise of the ratepayer’s surveyor as a mineral Valuer, it considered in his evidence he was “essentially putting a case rather than giving objective expert evidence”. In contrast the answers of the Valuation Officer’s expert were wholly objective. He naturally defended the decisions he and his VOA colleagues made when valuing mineral hereditaments for the 1990 rating lists, but did so objectively. The Tribunal found his short, common sense answers showed a wide knowledge and experience of minerals and were helpful and convincing.
Similarly, the trenchant views expressed by the Lands Tribunal on the evidence provided by the ratepayer’s expert in Abbey National Bank plc v O’Hara (VO) [2005 RA 247] provides salutary reading for any surveyor witness.
11.3 Statement to be made by VO Expert Witness
The Royal Institution of Chartered Surveyors has published best practice advice for surveyors when undertaking rating appeals before valuation tribunals, ‘Rating Appeals Guidance Note’ (RICS Books 1999). This supplements the mandatory practice note and guidance ‘Surveyors Acting as Expert Witnesses’ (RICS Books 3rd edn 2008). The third edition of the Practice Note requires additional actions and statements as compared to the second edition and seeks to set a higher standard for compliance. The aim is very much to ensure surveyors are aware of the role they are adopting when acting as an expert witness. It emphasises the primary duty is to the tribunal to ensure the expert evidence provided by the surveyor:
*¨‘must be, and must be seen to be, your independent and unbiased product, and fall within your expertise, experience and knowledge; *¨must state the main facts and assumptions it is based upon, and not omit material facts that might be relevant to your conclusions; and *¨must be impartial and uninfluenced by those instructing or paying you to give the evidence.’
The guides require Chartered Surveyors to include a statement of truth in their documentation or written report for the tribunal along the following lines:
‘I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.’
In addition the report must contain the following declarations at its end:
‘I confirm that my report includes all facts which I regard as being relevant to the opinions which I have expressed and that attention has been drawn to any matter which would affect the validity of those opinions.
I confirm that my duty to the Valuation Tribunal as an expert witness overrides any duty to the Valuation Officer or Valuation Office Agency, that I have understood this duty and complied with it in giving my evidence impartially and objectively, and that I will continue to comply with that duty as required.
I confirm that I have no conflicts of interest of any kind other than those already disclosed in my report.
I confirm that my report complies with the requirements of the Royal Institution of Chartered Surveyors (RICS), as set down in Surveyors acting as expert witnesses: RICS practice statement.’
The report should be personally signed and dated.
The requirement to draw attention to drawn to ‘any matter which would affect the validity of those opinions’ means it is beholden to the surveyor to identify any weaknesses in your valuation and explain why you have considered they do not damage your conclusion.
The report itself must contain certain information:
*¨Give details of your qualifications, and relevant experience, knowledge and expertise (commensurate in detail with the nature and complexity of the case). *¨State the substance of all material instructions. For the VOA wording along the lines of “I have been requested by the Valuation Officer to inspect and value the hereditament for rating purposes in accordance with the requirements of the Local Government Act 1988” should be sufficient *¨Give details of any literature or other material that you have relied upon in making the report, including the opinions of others. *¨State who carried out any survey that you have used for the report and whether or not it was carried out under your supervision. If you did not carry out the referencing yourself you need to state who did undertake the inspection and provide details of the referencer’s qualifications and relevant experience, knowledge and expertise. If for any reason you have not inspected the hereditament personally you need to state why. * Consider all matters material to the instruction. You must state clearly all assumptions and facts upon which your opinion and reasoning is based, distinguishing between those facts that you believe to be true and those you have assumed (specifying those you have been instructed to assume).
Whilst the requirement is mandatory for Chartered Surveyors, the requirement and reasons for the statement hold good for all experts giving evidence to a valuation tribunal, whether chartered or not. The duty of an expert is to assist the tribunal to reach the correct answer, not to ensure the expert’s client or principal “wins” the case. The duty is therefore to give an honest opinion and to set out the facts truthfully. The RICS advice stresses the importance of keeping separate the role of advocate and expert witness. It is usual for VO caseworkers attending valuation tribunals to undertake both roles, rather than having a barrister or solicitor undertaking the advocacy and the caseworker solely providing the expert evidence. In either role, it is the duty of the caseworker to assist the tribunal. Witnesses must provide their evidence both openly and honestly and must not seek to conceal any relevant matter. As an advocate, surveyors may emphasise a point in a particular way but not to such an extent as actually to mislead the tribunal.
All caseworkers should therefore include in any document giving their opinion of value, valuation calculations or other evidence a signed statement similar to the following:
I believe that the facts stated in this report are true and that the opinions expressed are correct. I have included all facts I consider relevant to those opinions and have drawn attention to matters which would affect the validity of my opinion. I understand my duty to the Tribunal and have complied with that duty. My report follows the guidance contained in the RICS publication “Chartered Surveyors Acting as Expert Witnesses.”
This is a method used to test the quality or veracity of the verbal and other evidence given by a witness, using a series of precisely formed questions.
It is not mandatory to cross-examine. When doing so, the main objectives will include:
- The laying of a foundation for any comments that the advocate may wish to make later
- Putting the alternative case to a witness for comment
- The eliciting of extra and useful facts which may support the alternative case
- The discrediting of evidence given by the other party, pointing out inconsistencies
- The challenge the soundness of opinion and the methods adopted
These guidelines will help in the framing of effective questions for cross-examination:
- Keep them simple
- Ask one question at a time
- Think about the point you want to make and form it as a question
- Never ask a question to which you do not know the answer
- Ask sufficient questions to make the necessary points, but no more
- Be precise
An adjournment can take place once a hearing is started. (This is in contrast to a postponement, which is a deferment of the hearing before it has started.) A hearing may be adjourned for such time and to such a place as the tribunal sees fit. The parties will then be given “reasonable notice” of the time and place to which the hearing has been adjourned.
The VT may inspect an appeal hereditament and comparable properties where they feel this will aid their appreciation of the case being put before them. All parties to the appeal have the right to attend the inspection and must be given notice of the time and date of the inspection The VT may limit the number of person attending an inspection to one per party to the appeal.
Whenever the VT proposes to inspect, the VO should accept an invitation to be present at the inspection and should be prepared to assist in the making of such arrangements as may be practicable. It needs to be emphasized in this connection that the VT has no legal power of entry and the VOA formal notice of inspection should not be used.
15. The decision
Under regulation 33(1), of the 2005 Appeal Regulations, an appeal may be decided by a majority of the VT members participating.
Where, under regulation 30(2), two members heard the appeal and they are unable to agree, the appeal has to be remitted to a fresh hearing in front of three members.
Following a hearing the decision is generally reserved, but under regulation 33(2) Wales, Regulation 36(1) England the VT / VTE may give their judgement orally immediately afterwards. Decisions must be confirmed (if given orally) or communicated by notice in writing to the parties, together with a statement of reasons, as soon as reasonably practicable after being made (regulation 33(3) Wales, Regulation 37(1) England).
A decision of a VT does not create a binding precedent that has to be followed in other similar cases. Each case is decided on its individual facts and an interpretation of the law as it relates to those facts. Nevertheless previous decisions may provide a useful guide as to how particular circumstances have been interpreted in the past. The Valuation Tribunal Service provides a comprehensive record of its decisions that can be accessed via the Rating Intranet homepage for this purpose.
Having decided a rating appeal, the VT may require a valuation officer by order to alter the rating list in accordance with any provision made by or under the LGFA 1988 (Regulation 34(1) Wales Regulation 38(4) England)
The VT is not constrained by the increase or decrease contended for in the proposal. However, where the decision is that the rateable value should be an amount greater than both the amount shown in the list at the date of the proposal and the amount contended in the proposal, then the order shall require that the list be altered with effect from the day on which the decision was given (Regulation 34(4) Wales Regulation 38(5) England).
Under Regulation 34(5) Wales and Regulation 38(6) England, this provision for the VT to increase assessments does not arise in cases involving splits mergers or reconstitutions.
The Valuation Officer will comply with an order made by the VT within a period of two weeks beginning on the day the order is made (Regulation 34(3) Wales Regulation 38(9) England)
In a case where the circumstances giving rise to an alteration ordered by a VT have at the date of the decision ceased to exist, the order may require the alteration to be made in respect of such period as appears to be commensurate with the duration of those circumstances (Regulation 34(6) Wales Regulation 38(7) England). This provision enables the reinstatement of temporary allowances, in particular where at the date of the decision a VO alteration would be subject to a restricted effective date.
Under regulation 34(7) Wales Regulation 38 (10) England, the VT may additionally require that any matter ancillary to its subject matter be attended to.
16A Status of Orders
The valuation officer is required to alter the rating list in accordance with the order. There is no provision for this to extend beyond the rating list and require the valuation officer to alter the summary valuation calculation shown on the VOA website so that it accords with the tribunal’s reasons given in the decision. The summary valuation calculations have no statutory force and do not form part of a rating list.
The decision provides the valuation tribunal’s reasons but it is its order which has statutory effect. Upon receiving a decision and order which is not in accord with the VO’s contentions at the hearing the VO needs to consider whether the outcome shown in the order is something that can be accepted or whether an appeal should be made to the Lands Chamber of the Upper Tribunal (see 18 below). It is important that the VO has a strong regard to proportionality in this and only appeals if the order is really unacceptable.
Sometimes, on careful consideration, the VO will be able to accept the rateable value decided by the tribunal but not its reasoning. In doing this the VO may recast the valuation calculations in a different form from the tribunal but nonetheless reach the same rateable value and be content not to appeal. As the website summary valuation calculation is generated from the VO’s computerised record, the re-cast valuation calculations will appear in summary form on the website.
It should be noted the Lands Chamber of the Upper Tribunal will not entertain an appeal where the rating list entry is not in dispute.
Queries may be received as to why the website shows a different calculation from the valuation tribunal decision. It should be explained there is nothing wrong in there being a difference between the summary valuation calculation and the decision. The website does not purport to show the valuation tribunal’s calculations but does show the determined rateable valuation together with the VO’s interpretation of that rateable value. The calculations represent the VO’s view of how the valuation should be formulated.
Clearly though, the valuation officer will need to carefully consider the VO’s valuation calculations and why the VO has been unable to accept the tribunal’s reasoning in whole or part. It is preferable for the VO to show a summary valuation calculation in line with the tribunal’s reasoning as much as possible.
The process is similar to the situation when agreeing rating assessments. It is usual for the parties, ratepayer’s professional adviser and VO, to discuss the build up of a valuation. Areas may not tie together, values for particular areas may be in contention, allowances made may differ. All these need to be resolved, hopefully without recourse to the valuation tribunal. Ideally the various elements will be agreed and the VO able to enter them into the valuation build up in the VOA’s computer program and for them to find their way into the published valuation calculations so that both parties are content with the calculations as they appear. Sometimes, though, the parties will not be able to agree to the build up but can agree to a rateable value and so it will be the VO’s figures which will find their way into the published valuation calculation.
17. Review of a tribunal decision
There are limited grounds for seeking a review of a decision.
See Rating Manual section 8 part 3 Part D: Review of Decisions
18. Appeal against a Valuation Tribunal decision
An appeal can be made to the Lands Tribunal following the decision of the valuation tribunal. The appeal must be made by the within 4 weeks of the party being notified of the decision.
See Rating Manual section 8 part 4: Procedure for Lands Tribunal Appeals for the course a VO must adopt when mounting an appeal to the Lands Tribunal.
The Lands Tribunal may then give the parties leave to appeal to the Court of Appeal on a point of law only. There is a further right of appeal to the House of Lords, although the grounds of appeal are again restricted to a point of law.
Part 3D: Review of decisions
In certain circumstances, an application can be made to have a VT decision set aside or reviewed. Historically, s.44 of the 1990 regulations provisions provided a way of redressing a grievance, rather than to appeal to the Upper Tribunal Lands Chamber, as there would be no costs involved. (Usually, however, owing to time limits, an Upper Tribunal reference would be need to be prepared for submission in the event of an unsatisfactory result).
The current regulations, however, are much more limited and have restricted the grounds for review to those shown in 3.0 below.
They are contained in regulation 35 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 WSI No 758 and regulation 40 of the Valuation Tribunal for England (Council Tax and Rating Appeals)(Procedure) Regulations 2009 SI No 2269.
Where the VO believes that a review is warranted the Technical Adviser should be consulted before making any application.
Regulation 35 of the Non-Domestic Rating (Alteration of Lists and Appeals)(Wales) Regulations 2005, WSI 2005/758 and makes provision for a Valuation Tribunal on written application by a party, to review or set aside by certificate any decision on specified grounds.
In England regulation 40 of the Valuation Tribunal for England (Council Tax and Rating Appeals)(Procedure) Regulations 2009 SI No 2269 provides for the President of the VTE to consider all applications for review and direct the VTE to review a decision of part of it.
In Wales the grounds for general decisions on which an application for such a review can be made are:
a. that the decision was wrongly made as a result of a clerical error;
b. that a party did not appear and can show reasonable cause why he did not do so;
c. that the decision is affected by a decision of, or an appeal from, the High Court or Upper Tribunal in relation to an appeal in respect of the hereditament which was the subject of the Tribunal’s decision.
d. addition, for completion notice decisions, the grounds are that new evidence, the existence of which could not have been ascertained by reasonable diligent enquiry or could not have been foreseen, has become available since the conclusion of the proceedings to which the decision relates.
In England under regulation 40 (5) the grounds for general decisions on which an application for such a review can be made are:
a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
b) a document relating to the proceedings was not sent to the VTE at an appropriate time;
c) a party or its representative was not present at a hearing relating to the proceedings and the party shows reasonable cause for its or its representative’s absence;
d) there has been some other procedural irregularity in the proceedings;
e) the decision is affected by a decision of, or on appeal from, the Upper Tribunal or the High Court;
f) where the decision relates to an appeal against a completion notice, new evidence, whose existence could not have been discovered by reasonable inquiry or could not have been foreseen, has become available since the conclusion of the proceedings.
An application must be made with 28 days beginning on the day on which notice of the decision is given. In the event that an application for review is made beyond this period it may be dismissed, but in extenuating circumstances it may still be possible and advice should be taken from the Technical Adviser.
An application cannot be made where an appeal against the decision in question has been determined by the Upper Tribunal, but this is not likely to have occurred in most cases.
In England an application to review a decision must be considered by the VTE President, regulation 40(3)(b).
5. Form of request
The Regulation states “written application” but no particular format is stated. As the circumstances will vary considerably with each case the application should be made in letter form, addressed to the Clerk of the Valuation Tribunal with a copy to the party(ies) clearly stating the grounds and the reason for the request.
6. Notification by valuation officer
In Wales regulation 39 requires that where a valuation officer applies to a valuation tribunal under regulation 35 for the review of a decision where an order for alteration of the list is made, he/she shall at the same time or as soon as reasonably practical thereafter notify the relevant billing authority of the application. No particular format is provided for such notice and a copy of the application for review would normally suffice.
In England regulation 21 of the Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009, requires that where a valuation officer applies to a valuation tribunal under regulation 40 of the Valuation Tribunal for England (Council Tax and Rating Appeals)(Procedure) Regulations 2009, for the review of a decision where an order for alteration of the list is made, he/she shall at the same time, or as soon as reasonably practical thereafter, notify the relevant billing authority of the application. No particular format is provided for such notice and a copy of the application for review would normally suffice.
7. Interaction with clerk of valuation tribunal
Where such a review is warranted, especially over correction of clerical errors, VOs should
always endeavour to communicate effectively and maintain close liaison with the clerk to the valuation tribunal.
The VTE may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction, order or any document produced by it under regulation 39 of the Valuation Tribunal for England (Council Tax and Rating Appeals)(Procedure) Regulation 2009
8. Response of the valuation tribunal
In Wales the tribunal may determine either:
(a) not to review the decision, or
(b) having reviewed the decision, not to set it aside, or
(c) to set it aside and revoke any order made in consequence of the decision
and the clerk shall notify the parties as soon as reasonably practicable
In England, the President to the VTE will consider all applications made under regulation 40(1) of the Valuation Tribunal for England (Council Tax and Rating Appeals)(Procedure) Regulation 2009, and may as a result, direct that a review be undertaken of the whole, or part of a decision which disposes of proceedings on an appeal.
If the VTE, in their review consider that any of the grounds in Reg 40(5) [referred to above at paragraph 3] are satisfied, and that it is in the interests of justice to do so, they will then set aside the decision, or part of it.
9. Re-instatement of an appeal by the valuation tribunal
An application for the re-instatement of an appeal or lifting of a bar must normally be made in writing within one month of the original bar or strike out. The application must include the reasons for making the application and any supporting evidence.
An application after one month may be considered by the tribunal if an extension of time application is simultaneously made and supported by reasonable grounds.
Applications for re-instatement or the lifting of a bar will be considered by a senior valuation tribunal member.
Grounds for re-instatement include; that there was compliance with the relevant direction and the decision to bar or strike out was made in error; or that there are legitimate reasons to explain or excuse, the non-compliance.
Where the strike out or bar is for late service of a SOC after the 5pm deadline, this will be lifted where it can be shown that the SOC was served electronically ten minutes before the deadline.
It is for the applicant to satisfy the member that it is in the interests of justice that the appeal be reinstated or the bar lifted.
Where an application is made on the grounds of some alleged action or behaviour of the VO it is expected that the tribunal would ask the VO to comment. Otherwise it is not anticipated that the tribunal will seek the view of the other party when considering an application.
If a VO receives notice of a bar from proceedings they must seek the advice of their Technical Adviser immediately.
The Striking out proceedings are covered within Reg 10 of The Valuation Tribunal for England (Council Tax and Rating Appeals) Procedure regulations 2009 no 2269 with a full explanation of how the tribunal will consider applications for re-instatement covered within VTE/PS/C2.
The NDR procedures manual covers the process to follow when an appeal has been re-instated see here.
9.1 Valuation Officer - Barred from a VTE hearing
Under the Valuation Tribunal for England’s (VTE) practice statement A7-1 and the standard directions, a valuation officer (VO) may be barred if they fail to serve a statement of case at the appropriate time. In such cases the VO should apply for the bar to be lifted but this is unlikely to succeed unless there are genuine mitigating circumstances. Assistance in drafting a request to lift a bar can be sought from a Technical Adviser.
In a recent case the VO was barred for failure to serve a statement of case and the VT decided the appeal at an RV the VO felt was too low. Obviously the only evidence was that provided by the appellant’s agent and that wasn’t tested by cross examination or any evidence from the VO to support a different RV. The VO appealed to the Upper Tribunal (Done Brothers – RA/85/2014) but the appellant contended as the VO had been barred, they couldn’t even make the appeal. The UT left this point undecided stating there was no evidence to say the VO had even been present at the VT hearing and so clearly hadn’t “appeared”.
Following this case, if the VTE refuses to lift the bar, then the VO must still be represented at any VTE hearing. It is important that the VO’s representative make themselves known to the VT panel and ask that their name and the fact they are attending the hearing is recorded in the decision. If the VT panel or the clerk refuse to record this at the hearing or, when the decision is received, there is no record of the VO’s representatives presence, this must be raised with the VT and the caseworker should contact a Technical Adviser.
10. Preparing case for Upper Tribunal
Where an appeal to the Upper Tribunal is also likely, no delay in preparing appeal submissions should result from an application under regulation 35 or regulation 40, as the time limits for UT appeals run notwithstanding such an application.