NDR Dispute: Revised Bills and Multiple Occupancy
Associate Solicitor, Aidan Thomas discusses a recent case in which he assisted a Local Authority in obtaining a liability order (‘LO’) for significant outstanding business rates, following a two-day hearing before the Magistrates’ Court.
The matter concerned a large parcel of industrial land, comprising several commercial units contained within a single hereditament. We had advised the Council that it was appropriate to bill the freehold owner, as the sole occupant of the property, with reference to s65(2) and s43(1) of the Local Government Finance Act 1988 (“LGFA”).
At trial, the Respondent attempted to “ambush” the Council with a new procedural argument, alleging that the Council’s billing documents were defective, as they stated a higher sum than what was due by the time of trial.
Multiple changes had been made to the sum due, as a result of both alterations to the RV (following the VOA splitting off parts of the wider hereditament) as well as the application of Covid Additional Relief Fund discounts. We assisted the Council in preparing witness statement evidence explaining that they had served notices under Regulation 9 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, notifying the bill payer of the reduced sums due, after each alteration.
The Respondent then alleged that the Court was precluded from making a LO where the billing notices were for different sums than the summons, arguing that, at the point which enforcement proceedings are issued, the sum crystallises and the billing authority must have served compliant demand notices for the exact sum sought.
The District Judge dismissed the Respondent’s procedural argument, accepting our position that there was nothing within the Regulations that specifically prescribed that notices must expressly state the exact sum sought in liability. Further, the Judge considered that the reference in Regulation 10(3) to a sum which forms “part of a larger sum which has become payable”, was precisely the circumstances that arose in this matter.
The Judge also confirmed that it was open to the Council to make an oral application at trial, to amend the summons to match the sum stated in the Regulation 9 notices.
Having dispensed with the Respondent’s procedural argument, the Court went on to consider the substantive dispute as to liability.
The Respondent admitted that it had occupied part of the property during the relevant period, but asserted that it was not in exclusive occupation, as other parties also occupied other parts of the property.
The Respondent also alleged that third parties were in occupation by virtue of them having acquired title to unused plant and machinery remaining in the property. The Court accepted our argument that, under s65(5) LGFA, any such plant or machinery is to be disregarded when assessing the question of occupation.
The Judge was scathing in his assessment of the Respondent’s witnesses and evidence as to purported occupation, which he described as chaotic, unreliable, inconsistent, vague, and lacking a firm grasp of what was happening across the very large site.
In stark contrast, the Judge noted that the Council’s evidence and witness was clear and coherent, and demonstrated considerable experience in business rating matters.
Having assessed the contrasting evidence, the Judge was not satisfied that any third party had been in rateable occupation. He therefore found the Respondent to be the sole occupant.
As the Respondent failed to prove other legal persons occupied any part of the hereditament during the relevant period, it was unnecessary for the Judge to go on and consider issues of ownership. The LO was made for the full sum plus costs.
This case reinforces the importance of thorough preparation when drafting and presenting witness statement evidence to the Court. Where a Judge is presented with two completely different versions of events, they must ultimately determine which is more credible.
The judgment marked a successful resolution of a prolonged dispute. The Council is now in discussions with the Respondent with a view to agreeing a payment plan for both the sums subject to liability orders, and additional rates years.