[2024] UKUT 264 (LC)

Mr Trompeter KC’s basic submission on behalf of the appellant was that while Chambers as a whole occupies the common parts of the Appeal Premises (including the seminar room, administration room and the pupils’ room), each individual Member is the only person in occupation of his or her own Room. Chambers as a whole retains no, or no material control over that occupation. The individual Members were therefore in rateable occupation of their own Rooms.

The Valuation Officer’s case is that all of the Members of Chambers are jointly in rateable occupation of the whole of the Appeal Premises (and of Chambers’ other accommodation). At different times in the proceedings the Valuation Officer’s case has been expressed in a variety of ways, with either Mr Prosser KC himself or the Management Committee of Chambers or the four joint lessees being said to be the rateable occupier. Single occupancy of the whole of the Appeal Premises could reasonably be reflected in the valuation list in different ways and although Mr Trompeter KC objected to the fluctuations in the Valuation Officer’s case we do not think it matters for this appeal precisely how a common occupancy is described. The important issue is whether the Appeal Premises are properly shown in the list as a single hereditament, rather than as seven or more in separate rateable occupations.

In support of his submission Mr Trompeter KC pointed to the following features of the evidence. First, that each Members has exclusive occupation and use of their Room. Secondly, that they cannot be required to move or give up their Room nor, thirdly, can they be required to share it. Fourthly, Members occupy their own Rooms for the purposes of their respective businesses. Fifthly, they make minimal use of their Rooms for other purposes. Sixthly, there are no controls over what use Members may make of their Rooms. Seventhly, there is no connection between a Member being allocated their own Room and their willingness to participate in the management of Chambers or co-operate in Chamber’s activities. Eighthly, Members are free to decorate and furnish their Rooms as they choose. Ninthly, Members have spent large sums furnishing and decorating their Rooms and would not have done so if there was a risk that they might be required to move or share.

This analysis was criticised by Mr Reynolds as focussing only on the individual Rooms and as not looking at the wider context. We agree that the wider context is important, as Cardtronics in particular illustrates.

Two features of particular significance were omitted by Mr Trompeter KC from his list of material facts but which we nevertheless consider to be important to the determination of this appeal. The first is that all Members of Chambers are bound together in a contractual relationship, through their subscription to the Chambers’ Constitution, which imposes obligations and confers rights on them. The second is that amongst the rights which Members of Chambers enjoy (and the only right which bears directly on occupancy of accommodation) is an equitable interest under the trust of land in which the leases of the Appeal Property are held pursuant to clause 46 of the Constitution which provides expressly that property acquired for Chambers is to be held on trust for all Members.

In Ludgate House, at [49], Lewison LJ approved the following observation by this Tribunal (HHJ Mole QC and Mr N J Rose FRICS) in Esso Petroleum Co Ltd v Walker [2013] RA 355, at [81]:

“When Lord Russell said, in Southern Railway, that it was "immaterial whether the title to occupy is attributable to a lease, a licence or an easement” he did not mean, in our opinion, that the nature of the title to occupy was irrelevant. That is made plain by the earlier paragraphs of his judgement. He said that the question of paramountcy is to be answered having regard to “the position and rights of the parties in respect of the premises in question.” What he meant was that the "forms of the documents", in the sense of the names or classification of those documents, is not of significance. But the nature and attributes of the title to occupy which the documents of title grant is certainly very relevant. … An essential fact of occupation is the relative position of the parties and the rights under which each party occupies. That may well, in turn, depend on the “title” to occupy, however lawyers would label that title. In our view the respective rights of the occupying parties form an essential part of the factual setting.”

By virtue of clause 46 of the Constitution each Member of Chambers has an equal and joint beneficial interest under a trust of land in every part of the Appeal Premises. That arrangement is recorded in the leases themselves, which include a declaration that the Tenant holds the property on a trust of land. The leases also permits the Tenant to allow the beneficiaries of the trust to use the Appeal Premises provided no relationship of landlord and tenant is created. It follows that no one individual Member has any greater right under the trust to the occupation of any part of the premises than any other. As the passage from Lord Diplock’s speech in Northern Ireland Commissioner of Valuation quoted at [48] above makes clear, where individuals occupy under a joint right (legal or equitable) for rating purposes the situation will be treated as one of joint occupation of a single hereditament and each occupier will be liable for the same rate. That treatment will only be disturbed if a different arrangement is entered into under which occupation is divided and each becomes entitled to exclusive occupation of part of the premises.

Mr Trompeter KC acknowledged that clause 46 of the Constitution gave Members a joint interest in the whole of the Appeal Premises but said that those rights had been derogated from by the Constitution and that in any practical sense joint occupancy was inconsistent both with the facts and with the Constitution. In particular it was inconsistent with the requirement that each Member pay the “own room contribution”. We do not consider the labelling of the payment in that way is determinative or that it implies more than the agreed allocation of space for the time being and the sharing of some of the costs of occupation; other occupation costs, such as heating, lighting or insurance, are met as part of Chambers’ residual expenses. Occupancy of separate parts of property held in common is not inconsistent with the continuance of the parties’ joint rights in relation to the whole, nor are unequal contributions to the joint expenses of occupation which may be insisted on by the trustees (both being within the powers of the trustees under section 13, Trusts of Land and Appointment of Trustees Act 1996).

Nor do we consider that the allocation of Rooms within Chambers to individuals changes the arrangement from a joint occupancy of the whole to separate rateable occupancy of individual Rooms. The features relied on by Mr Trompeter KC as supporting the exclusive occupancy of Rooms by individual Members are equally consistent with occupation being retained by Members collectively. The whole purpose of jointly acquiring the Appeal Premises was to accommodate Members in the style necessary to enable them to carry on their individual practices, which for the most part requires privacy and single occupancy. That does not require that the Members cease their joint occupation of the whole, it simply reflects the mode of occupation appropriate to this particular use. As Farwell LJ noted in R v Melladew [1907] 1 KB 192:

“Rateable property has many varieties; of some the normal use is by personal occupation, e.g. a dwelling-house, of others by occupation by live or dead stock, e.g. a linhay used as a shelter for cattle, or a barn; and the nature of the property and its mode of use must be considered in each case. The test, in a case like the present, of business premises, appears to me to be, Has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it.”

The purpose for which the Appeal Premises are occupied is a shared purpose of all Members, namely to enable each of them to carry on their individual practices from the same premises and under their collective identity, and to benefit from the joint provision of support and administrative services and the sharing of expenses. That common purpose requires that some parts of the Appeal Premises be allocated to individual Members and some parts to administration, to the provision of seminars which contribute to the collective profile of Chambers as well as to the reputations of individuals, and to the training of pupils who will provide the next generation of colleagues thereby, it is hoped, sustaining Chambers’ reputation and prolonging the benefits of membership for current Members. None of these uses of different parts of the building changes the nature of the agreed arrangement from a joint occupancy of the whole.

In this case the Members of Chambers have agreed that they will jointly acquire premises from which to conduct their separate businesses. They have agreed to be bound by the terms of the Constitution and policies approved by Chambers. There are also conventions and understandings about how Chambers’ premises will be occupied, but those are subject to the collective decisions of Chambers, approved by a majority vote, or delegated to the Management Committee (as under the part-time working policy). The approval of the parental leave and part-time working policy demonstrates that those conventions, including in relation to the occupation of Rooms, are not sacrosanct and that Chambers as a whole may choose to override them. They may also be adapted or departed from where it becomes expedient to do so, such as when new members are recruited on the understanding that they will be required to share for a time, or members wishing to work from home choose not to have a Room of their own but decide they will share.

We therefore do not accept Mr Prosser KC’s characterisation of the policies adopted by Chambers about sharing as an exception which proves the rule that Chambers as a whole has no control over the occupancy of individual Rooms. On the contrary, they are consistent with the absence from the Constitution of any restriction on the control of accommodation and are examples of the power of Members acting jointly, or by delegation, to allocate the use of space in whatever manner is considered to be most convenient. They are a reflection of the collective control which Chambers has over its premises and which it has not parted with to individual Members. The first, second and third of the matters relied on by Mr Trompeter KC (at [60] above) are therefore an incomplete account of the relevant facts and must be qualified by the additional consideration that Chambers as a whole retains the power to vary the prevailing arrangements so as to require or permit moving or the sharing of Rooms.

The fact that that there is considerable stability in the occupation of individual Rooms and that Chambers has not exercised the powers in the adopted policies, or implemented different policies for Room sharing or allocation is not determinative of the question of who is in rateable occupation. In Ludgate House, at [77] to [80],Lewison LJ emphasised that an assessment of whohas general control is not limited to consideration of the rights which the parties have exercised but includes unexercised rights: “the question is whether the exercise of the retained rights would interfere with the occupant’s enjoyment of the premises he occupies for the purposes for which he occupies them”. Those observations were made in a context where there was no question of joint rights of occupation, but they seem to us to be equally applicable. In this case the Members of Chambers have retained all their rights of occupation while allocating between themselves the use of individual Rooms. We do not understand it to be disputed that the joint occupancy of the whole of the Appeal Premises by the Members of Chambers, if that is the correct analysis, would satisfy the conditions for rateable occupation. We consider that it is the correct analysis and we dismiss the appeal on that basis. We find that individual Members of Chambers are not in rateable occupation of their separate Rooms because the whole of the Appeal Premises are in the joint occupation of all Members.