TC09626 - [2025] UKFTT 01067 (TC)

Fecha: 12-Jun-2025

Discussion

Discussion

57.

As we have decided, it is open to the Tribunal, in determining whether an objective observer would consider a property to be suitable for use as a dwelling, to consider the terms on which any occupancy would take. There are three main options for the occupation of the hallway:

(1)

If the hallway as part of the Main House: this option would have advantages in that it would resolve the issues around access to the garden but in our view the fact that the bolt for the Utility door in the Annexe was only lockable from the Annexe side means that the occupier in the Annexe would have access to the Main House. In our view this would not be acceptable to an occupier of the Main House.

(2)

If the hallway were communal: the kitchen door would provide sufficient security for the Main House. We do not accept HMRC’s argument that the ability to unlock the kitchen door from both sides is an issue as the occupants of the Annexe need not be given a key. However, we do agree that there is some loss of privacy if the door between the two properties is the kitchen door as the top panes of glass are not entirely opaque. Further, in order to prevent occupiers of the Annexe looking into the conservatory from the garden the occupants of the Annexe could not have access to the garden. However, this would cause difficulties in denying the Annexe access to the garden as the back door would need to be locked and then unlocked by occupants of the Main House when they wanted access to the garden.

(3)

If the hallway were part of the Annexe: the kitchen door would provide sufficient security for the Main House but similar issues arise as to impact on privacy as with a communal hallway. Furthermore, in this situation it is difficult to see how access to the garden for the Main House would work.

58.

There are other permutations and there would need to be provision as to who had access the garden. We agree but do not think it necessary for the occupant of the Annexe to be granted access to the garden. A property such as the Annexe, which in many ways resembles a studio flat, need not be granted rights to access a garden to amount to a dwelling. However, resolving those privacy and security concerns by denying the occupant of the Annexe access to the garden is difficult to do if the hallway were part of the Annexe or communal.

59.

The occupants of the Annexe could have access to the garden either jointly with the occupiers of the Main House or exclusively. We find it unlikely the occupiers of the Main House would grant exclusive access rights to the garden. Even if shared this would create privacy and security issues for the Main House as it would enable them to see into the kitchen and conservatory.

60.

We accept that note that having soundproof and fireproof doors, whilst not a discrete condition in Fiander, is a factor that enhances security and privacy.

61.

We note the reference to a “degree of privacy, self-sufficiency and security...” (Fiander at [48(6)]) but it is not absolute (Packman TC/2023/08890 at [51], Renton TC/2024/01660 at [27]).). It is the Appellants’ case that as the Annexe sits in the grounds of another property there can never be absolute security but that is not the test.

62.

Overall, we have real difficulties envisaging how the rights of occupation and access to the rear hallway could be managed as between third party occupiers and this must be a factor in applying Fiander. The most practical option would be to provide that the hallway was communal and that the Main House had exclusive use of the garden, recognising that this caused practical difficulties to the occupiers of the Main House.

other issues

63.

A number of other issues were raised by HMRC and are in brief as set out below.