In Secerno and others v Oxford Magistrates Court and Vale of White Horse District Council  EWHC 1009 (Admin) the Administrative Court held that a failure by a local authority to supply information to the valuation officer, in accordance with a requirement in particular regulations, was irrelevant when Magistrates were considering the issue of a liability order in respect of unpaid business rates. The regime differed from that in the North Somerset DC v Honda case  EWHC 1505 and a different statutory intention was said to apply.
The Claimants, three non-domestic ratepayers, sought judicial review of a decision of the Magistrates Court to make a liability order in respect of unpaid business rates. They alleged that the local authority, in this case Vale of White Horse District Council, was in breach of its statutory duty under Regulation 42 of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2005 ("the 2005 Regulations"). Regulation 42 provides that where there is information (falling within particular specified categories) which, in the local authority's opinion, requires an entry in the rating list to be altered, that information should be supplied to the valuation office as soon as reasonably practicable after it comes to the attention of the local authority. The local authority in this case had been aware of refurbishment works to the relevant properties but had not contacted the valuation office sufficiently promptly. This led to delays in issuing demands for business rates, which the Claimants alleged caused them difficulties. The Claimants therefore submitted that the impact of those delays should be taken into account by the Magistrates Court, with the result that the Magistrates Court could decline to make the liability order.
Judgment of Mr Justice Burnett
The Claimants' arguments were by analogy to those put forward in North Somerset. That case concerned the failure by an authority to serve a demand notice promptly, as required by different Regulations (The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 ("the 1989 Regulations")). In that case it was argued that the failure to serve the notice as soon as practicable had the effect of invalidating the demand notice. The Court in that case emphasised that the main test to apply in such a situation is to consider the Parliamentary intention behind the relevant provision and regime. The Claimants submitted that, following North Somerset, the same approach should be taken in respect of a failure by the local authority to comply with the notification requirements in the 2005 Regulations.
However the judge considered the different regime governing liability orders, which provides no discretion for Magistrates Courts in the making of liability orders – an order must be made if the Court is satisfied that the sum has become payable and has not been paid. In this situation the judge was bound to conclude that the sums had become payable because the statutory preconditions for liability in the Local Government Finance Act 1988 had been fulfilled. The liability to pay arose through the operation of the primary legislation, although the duty to pay only arose through the operation of the 1989 Regulations, i.e. once a valid demand notice had been served. It was accepted that the demand notices in this case had been validly served, unlike in the North Somerset case.
The judge contrasted the position of demand notices under the 1989 Regulations with the information duties in the 2005 Regulations, which have nothing to do with the collection and enforcement of business rates. Rather they are concerned with the content of the rating lists which provide the foundation for liability for business rates. The judge therefore held that Regulation 42 of the 2005 Regulations could not be interpreted as providing any qualification of the clear statutory scheme for collection and enforcement set out in the 1989 Regulations. The provisions empowering the Secretary of State to make the Regulations did not give a power to qualify the calculation of the amount due. The judge therefore rejected the argument that Parliament intended to qualify the liability for business rates, or the duty to collect them, in the event of a breach of Regulation 42. Rather, he concluded that regulation 42 is simply concerned with providing information to the valuation office so that an up to date list can be maintained. It is not concerned with, and cannot affect, liability for rates which arises under the primary legislation and is governed by the 1989 Regulations.
The judge therefore concluded that compliance with Regulation 42 was "an irrelevance" when a Magistrates Court was adjudicating upon an application for a liability order, despite the potential prejudice caused to ratepayers by a failure to comply with Regulation 42.
At first glance it appears that this case runs contrary to the position in North Somerset, which also concerned the effect of timely compliance with procedures set out in Regulations on the underlying liability for rates. However, the central principle arising from North Somerset was the need to examine and ascertain the particular intention of Parliament in respect of a procedural statutory duty, and that has been applied by the Court in Secerno. The differences between the two sets of Regulations, and the significant difference in the imputed Parliamentary intention, meant that the application of the same principle led to different results in the two cases, without any inconsistency.
Therefore, when ratepayers are seeking to rely on the North Somerset case they should be careful to properly examine the facts of their own situation and consider whether a similar Parliamentary intention to that referred to in Secerno can be said to apply. An important question will be whether the provision in question can be said to be relevant to the underlying liability for business rates or the duty to pay.