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HMRC internal manual

VAT Construction

HM Revenue & Customs
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Dwellings - an explanation of terms: what ‘designed as a dwelling or number of dwellings’ means: Note 2(c) - separate use or disposal

To meet this condition, neither separate use nor separate disposal of the dwelling must be prohibited. If either separate use or disposal is prevented by covenant, planning or similar permission, the condition isn’t met.

It has been claimed that ‘separate use or disposal’ means separate use or disposal from another dwelling. This isn’t accepted because the wording of the condition doesn’t tie use or disposal of the dwelling to anything in particular. The decision in Paul Cussins (VTD 20541) supports the view that the condition doesn’t limit separate use to a use separate to any other dwelling. The Tribunal dismissed the claim in the following terms:

…Further we do not accept Mr Flint’s submission that separate use means separate from any other dwelling. Neither…nor Note 2 (c) to Group 5 of Schedule 8 limits the separate use to a use separate to any other dwelling.

We maintain that separate use or disposal isn’t restricted and where use or disposal is tied to another building, structure or even land, the condition isn’t met.

Accordingly, the condition can apply to exclude ‘granny’ annexes constructed in the grounds of a main house; and where a dwelling can’t be used or sold separately from other premises, such as a caretaker’s house at a school or assisted living units within the grounds of care or nursing homes.

Disposal isn’t restricted to a freehold disposal. It applies to leasehold interests and, pragmatically, we have settled for that occurring when a long lease is granted. By long lease, what is meant is a lease of the duration of a major interest grant (21 years or more or, in Scotland, for a period of not less than 20 years).

If there is a prohibition on separate disposal of the freehold and the same prohibition on granting a long lease, there is a prohibition on separate disposal. Conversely, if there is a prohibition only on granting a short lease, then there is no prohibition on separate disposal.

Occupancy restrictions don’t prevent the separate use or disposal of a dwelling. They are, therefore, not Note 2(c) prohibitions. Examples include restrictions that limit occupancy to people:

  • working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependents
  • over a certain age.

Note: Where the restriction goes beyond identifying a particular class of person and ties use of a dwelling to, say, a commercial activity being carried on in another building, this is a prohibition on separate use or disposal of the dwelling.

In Paul Cussins (VTD 20541) planning permission contained a condition that: “The residential accommodation hereby permitted shall only be occupied in conjunction with the commercial use hereby approved.”. The Tribunal held:

The wording of [the] Condition…to our mind established a close nexus between the residential and the commercial premises and taken in the context of the published planning policies of …and the reason for the decision as clearly stated this defines the domestic enjoyment as conjoined together with the commercial…We find that the planning permission in its wording restricts use or disposal and the provisions of Note 2 (c) are not satisfied.

However, there have been cases where Tribunals have decided otherwise.

In ME Wendels (UKFTT476), the planning permission contained the following condition: “The occupation of the dwelling hereby permitted shall be limited to a person solely or mainly employed or last employed in the cattery business … or a widow or widower of such a person, or any resident dependent.”.

In Ian Phillips (TC 01227), the planning permission contained the following condition: ‘the house…shall be occupied only by persons engaged in the management or operation of the business…together with family members.’

In both cases, the Tribunal appears to consider that the offending condition to be a restriction associated with the person occupying the property rather than a restriction associated with the property itself.