[1a] Section 45A of the LGFA 1988 is entitled 'Unoccupied hereditaments: zero-rating' and reads:

'(1) Where section 45 applies in relation to a hereditament, the chargeable amount for a chargeable day is zero in the following cases.

(2) The first case is where -

(a) the ratepayer is a charity or trustees for a charity, and

(b) it appears that when next in use the hereditament will be wholly or mainly used for charitable purposes (whether of that charity or of that and other charities).

(3) The second case is where -

(a) the ratepayer is a registered club for the purposes of Chapter 9 of Part 13 of the Corporation Tax Act 2010 (community amateur sports clubs), and

(b) it appears that when the hereditament is next in use -

(i) it will be wholly or mainly used for the purposes of that club and that club will be such a registered club, or

(ii) it will be wholly or mainly used for the purposes of two or more clubs including that club, and each of those clubs will be such a registered club.'

Separately, note: section 45(4C) of the LGFA 1988 provides relief for hereditaments wholly or mainly used for telecommunication equipment.

[1b] A few things to note here:

(1) Section 51 of the LGFA 1988 is entitled 'Exemption' and reads:

'Schedule 5 below shall have effect to determine the extent (if any) to which a hereditament is for the purposes of this Part exempt from local non-domestic rating.'

In the above, 'this Part' refers to Part III of the LGFA 1988, entitled 'Non-domestic rating'.

(2) As far as the author is aware, no regulations have been made under paragraph 20 to Schedule 5 to the LGFA 1988.

(3) Before listing the 15 Exemptions in paragraphs 1 to 20, Schedule 5 to the LGFA 1988, it is worth noting paragraph 21:

'(1) This paragraph applies for the purposes of this Schedule.

(2) “Exempt” means exempt from local non-domestic rating.

(3) Any land, building or property not in use shall be treated as used in a particular way if it appears that when next in use it will be used in that way.

(4) Any land or building which is not occupied shall be treated as occupied in a particular way if it appears that when next occupied it will be occupied in that way.

(5) A person shall be treated as an occupier of any land or building which is not occupied if it appears that when it is next occupied he will be an occupier of it.'

(4) The 15 Exemptions in Schedule 5 are:

(i) Agricultural premises (paragraphs 1-8):

'1. A hereditament is exempt to the extent that it consists of any of the following-

(a) agricultural land;

(b) agricultural buildings.

2. (1) Agricultural land is-

(a) land used as arable, meadow or pasture ground only,

(b) land used for a plantation or a wood or for the growth of saleable underwood,

(c) land exceeding 0.10 hectare and used for the purposes of poultry farming,

(d) anything which consists of a market garden, nursery ground, orchard or allotment (which here includes an allotment garden within the meaning of the Allotments Act 1922), or

(e) land occupied with, and used solely in connection with the use of, a building which (or buildings each of which) is an agricultural building by virtue of paragraph 4, 5, 6 or 7 below.

(2) But agricultural land does not include-

(a) land occupied together with a house as a park,

(b) gardens (other than market gardens),

(c) pleasure grounds,

(d) land used mainly or exclusively for purposes of sport or recreation, or

(e) land used as a racecourse.

3. A building is an agricultural building if it is not a dwelling and-

(a) it is occupied together with agricultural land and is used solely in connection with agricultural operations on that or

other agricultural land,

(b) it is or forms part of a market garden and is used solely in connection with agricultural operations at the market garden, or

(c) it is or forms part of a nursery ground and is used solely in connection with agricultural operations at the nursery ground.

4. (1) A building is an agricultural building if it is used solely in connection with agricultural operations carried on on agricultural land and sub-paragraph (2) or (3) below applies.

(2) This sub-paragraph applies if the building is occupied by the occupiers of all the land concerned.

(3) This sub-paragraph applies if the building is occupied by individuals each of whom is appointed by the occupiers of the land concerned to manage the use of the building and is-

(a) an occupier of some of the land concerned, or

(b) a member of the board of directors or other governing body of a person who is both a body corporate and an occupier of the land concerned.

(4) This paragraph does not apply unless the number of occupiers of the land concerned is less than 25.

5. (1) A building is an agricultural building if-

(a) it is used for the keeping or breeding of livestock, or

(b) it is not a dwelling, it is occupied together with a building or buildings falling within paragraph (a) above, and it is used in connection with the operations carried on in that building or those buildings.

(2) Sub-paragraph (1)(a) above does not apply unless-

(a) the building is solely used as there mentioned, or

(b) the building is occupied together with agricultural land and used also in connection with agricultural operations on that land, and that other use together with the use mentioned in sub-paragraph (1)(a) is its sole use.

(3) Sub-paragraph (1)(b) above does not apply unless-

(a) the building is solely used as there mentioned, or

(b) the building is occupied also together with agricultural land and used also in connection with agricultural operations on that land, and that other use together with the use mentioned in sub-paragraph (1)(b) is its sole use.

(4) A building (the building in question) is not an agricultural building by virtue of this paragraph unless it is surrounded by or contiguous to an area of agricultural land which amounts to not less than 2 hectares.

(5) In deciding for the purposes of sub-paragraph (4) above whether an area is agricultural land and what is its size, the following shall be disregarded-

(a) any road, watercourse or railway (which here includes the former site of a railway from which railway lines have been removed);

(b) any agricultural building other than the building in question;

(c) any building occupied together with the building in question.

6. (1) A building is an agricultural building if it is not a dwelling, is occupied by a person keeping bees, and is used solely in connection with the keeping of those bees.

(2) Sub-paragraphs (4) and (5) of paragraph 5 above apply for the purposes of this paragraph as for those of that.

7. (1) A building is an agricultural building if it is not a dwelling and

(a) it is used in connection with agricultural operations carried on on agricultural land, and

(b) it is occupied by a body corporate any of whose members are or are together with the body the occupiers of the land, and

(c) the members who are occupiers of the land together have control of the body.

(2) A building is also an agricultural building if it is not a dwelling and -

(a) it is used in connection with the operations carried on in a building which, or buildings each of which, is used for the keeping or breeding of livestock and is an agricultural building by virtue of paragraph 5 above, and

(b) sub-paragraph (3), (4) or (5) below applies as regards the building first mentioned in this sub-paragraph (the building in question).

(3) This sub-paragraph applies if-

(a) the building in question is occupied by a body corporate any of whose members are, or are together with the body, the occupiers of the building or buildings mentioned in sub-paragraph (2)(a) above, and

(b) the members who are occupiers of the land together have control of the body.

(4) This sub-paragraph applies if the building in question, and the building or buildings mentioned in sub-paragraph (2)(a) above, are occupied by the same persons.

(5) This sub-paragraph applies if the building in question is occupied by individuals each of whom is appointed by the occupiers of the building or buildings mentioned in sub-paragraph (2)(a) above to manage the use of the building in question and is-

(a) an occupier of part of the building, or of part of one of the buildings, mentioned in sub-paragraph (2)(a) above, or

(b) a member of the board of directors or other governing body of a person who is both a body corporate and an occupier of the building or buildings mentioned in sub-paragraph (2)(a) above.

(6) Sub-paragraph (1) above does not apply unless the use there mentioned, or that use together with the use mentioned in sub-paragraph (2) above, is its sole use.

(7) Sub-paragraph (2) above does not apply unless the use there mentioned, or that use together with the use mentioned in sub-paragraph (1) above, is its sole use.

(8) Sub-paragraph (4) or (5) above does not apply unless the number of occupiers of the building or buildings mentioned in sub-paragraph (2)(a) above is less than 25.

(9) In this paragraph “control” shall be construed in accordance with sections 450 and 451 of the Corporation Tax Act 2010.

8. (1) In paragraphs 1 and 3 to 7 above “agricultural land” shall be construed in accordance with paragraph 2 above.

(2) In paragraphs 1 and 5(5)(b) above “agricultural building” shall be construed in accordance with paragraphs 3 to 7 above.

(3) In determining for the purposes of paragraphs 3 to 7 above whether a building used in any way is solely so used, no account shall be taken of any time during which it is used in any other way, if that time does not amount to a substantial part of the time during which the building is used.

(4) In paragraphs 2 to 7above and sub-paragraph (2) above “building” includes a separate part of a building.

(5) In paragraphs 5 and 7 above “livestock” includes any mammal or bird kept for the production of food or wool or for the purpose of its use in the farming of land.'

(ii) fish farms (paragraph 9):

'(1) A hereditament is exempt to the extent that it consists of any of the following-

(a) land used solely for or in connection with fish farming;

(b) buildings (other than dwellings) so used.

(2) In determining whether land or a building used for or in connection with fish farming is solely so used, no account shall be taken of any time during which it is used in any other way, if that time does not amount to a substantial part of the time during which the land or building is used.

(3) “Building” includes a separate part of a building.

(4) “Fish farming” means the breeding or rearing of fish, or the cultivation of shellfish, for the purpose of (or for purposes which include) transferring them to other waters or producing food for human consumption.

(4A) But an activity does not constitute fish farming if the fish or shellfish are or include fish or shellfish which-

(a) are purely ornamental, or

(b) are bred, reared or cultivated for exhibition.

(5) “Shellfish” includes crustaceans and molluscs of any description.'

(iii) places of worship (paragraph 11):

'(1) A hereditament is exempt to the extent that it consists of any of the following-

(a) a place of public religious worship which belongs to the Church of England or the Church in Wales (within the meaning of the Welsh Church Act 1914) or is for the time being certified as required by law as a place of religious worship;

(b) a church hall, chapel hall or similar building used in connection with a place falling within paragraph (a) above for the purposes of the organisation responsible for the conduct of public religious worship in that place.

(2) A hereditament is exempt to the extent that it is occupied by an organisation responsible for the conduct of public religious worship in a place falling within sub-paragraph (1)(a) above and-

(a) is used for carrying out administrative or other activities relating to the organisation of the conduct of public religious worship in such a place; or

(b) is used as an office or for office purposes, or for purposes ancillary to its use as an office or for office purposes.

(3) In this paragraph 'office purposes' include administration, clerical work and handling money; and 'clerical work' includes writing, book-keeping, sorting papers or information, filing, typing, duplicating, calculating (by whatever means), drawing and the editorial preparation of matter for publications.'

(iv) certain property of Trinity House (paragraph 12):

'(1) A hereditament is exempt to the extent that it belongs to or is occupied by the Trinity House and consists of any of the following-

(a) a lighthouse;

(b) a buoy;

(c) a beacon;

(d) property within the same curtilage as, and occupied for the purposes of, a lighthouse.

(2) No other hereditament (or part of a hereditament) belonging to or occupied by the Trinity House is exempt, notwithstanding anything in section 221(1) of the Merchant Shipping Act 1995'

(v) sewers (paragraph 13):

'(1) A hereditament is exempt to the extent that it consists of any of the following-

(a) a sewer;

(b) an accessory belonging to a sewer.

(2) “Sewer” has the meaning given by section 343 of the Public Health Act 1936.

(3) “Accessory” means a manhole, ventilating shaft, pumping station, pump or other accessory.

(4) The Secretary of State may be order repeal sub-paragraphs (1) to (3) above.'

(vi) property of drainage authorities (paragraph 14):

'(1) A hereditament is exempt to the extent that it consists of any of the following-

(a) land which is occupied by a drainage authority and which forms part of a main river or of a watercourse maintained by the authority;

(b) a structure maintained by a drainage authority for the purpose of controlling or regulating the flow of water in, into or out of a watercourse which forms part of a main river or is maintained by the authority;

(c) an appliance so maintained for that purpose.

(2) `Drainage authority' means the Environment Agency, the Natural Resources Body for Wales or any internal drainage board and `main river' and `watercourse' have the same meanings, respectively, as they have in the Water Resources Act 1991 and the Land Drainage Act 1991.'

(vii) parks (paragraph 15) (Wales and England have separate rules here).

For England:

'(1) A hereditament is exempt to the extent that it consists of a park which-

(a) has been provided by, or is under the management of, a relevant authority or two or more relevant authorities acting in combination, and

(b) is available for free and unrestricted use by members of the public.

(2) The reference to a park includes a reference to a recreation or pleasure ground, a public walk, an open space within the meaning of the Open Spaces Act 1906, and a playing field provided under the Physical Training and Recreation Act 1937.

(3) Each of the following is a relevant authority-

(aa) a Minister of the Crown or Government department or any officer or body exercising functions on behalf of the Crown,

(a) a county council,

(b) a district council,

(c) a London borough council,

(d) the Common Council,

(e) the Council of the Isles of Scilly,

(f) a parish or community council, and

(g) the chairman of a parish meeting.

(4) In construing sub-paragraph (1)(b) above any temporary closure (at night or otherwise) shall be ignored.'

For Wales:

'(1) A hereditament is exempt to the extent that it consists of a park which-

(a) has been provided by, or is under the management of, a relevant authority or two or more relevant authorities acting in combination, and

(b) is available for free and unrestricted use by members of the public.

(2) The reference to a park includes a reference to a recreation or pleasure ground, a public walk, an open space within the meaning of the Open Spaces Act 1906, and a playing field provided under the Physical Training and Recreation Act 1937.

(3) Each of the following is a relevant authority-

(aa) a Minister of the Crown or Government department or any officer or body exercising functions on behalf of the Crown,

(a) a county council,

(aa) a county borough council,

(b) a district council,

(c) a London borough council,

(d) the Common Council,

(e) the Council of the Isles of Scilly,

(f) a parish or community council, and

(g) the chairman of a parish meeting.

(4) In construing sub-paragraph (1)(b) above any temporary closure (at night or otherwise) shall be ignored.'

(viii) property use for the disabled (paragraph 16):

'(1) A hereditament is exempt to the extent that it consists of property used wholly for any of the following purposes-

(a) the provision of facilities for training, or keeping suitably occupied, persons who are disabled or who are or have been suffering from illness;

(b) the provision of welfare services for disabled persons;

(c) the provision of facilities under section 15 of the Disabled Persons (Employment) Act 1944;

(d) the provision of a workshop or of other facilities under section 3(1) of the Disabled Persons (Employment) Act 1958.

(1A) For the purposes of this paragraph in its application to hereditaments in England, a person is disabled if he has a disability within the meaning given by section 6 of the Equality Act 2010.

(2) For the purposes of this paragraph in its application to hereditaments in Wales, a person is disabled if he is disabled within the meaning of section 3 of the Social Services and Well-being (Wales) Act 2014.

(3) “Illness” has the meaning given by section 275 of the National Health Service Act 2006.

(4) “Welfare services for disabled persons” means services or facilities (by whomsoever provided)-

(a) of a kind which a local authority in England had power to provide under section 29 of the National Assistance Act 1948 before it ceased to apply to local authorities in England;

(b) of a kind which a local authority in Wales has power to provide, or arrange to provide, to an adult in the exercise of its functions under sections 35 or 36 of the Social Services and Well-being (Wales) Act 2014.'

(ix) air-raid protection works (paragraph 17):

'A hereditament is exempt to the extent that it consists of property which-

(a) is intended to be occupied or used solely for the purpose of affording protection in the event of hostile attack from the air, and

(b) is not occupied or used for any other purpose.'

(x) swinging moorings (paragraph 18):

'A hereditament is exempt to the extent that it consists of a mooring which is used or intended to be used by a boat or ship and which is equipped only with a buoy attached to an anchor, weight or other device-

(a) which rests on or in the bed of the sea or any river or other waters when in use, and

(b) which is designed to be raised from that bed from time to time.'

(xi) road crossings over watercoarses etc (paragraph 18A):

'(1) A hereditament which is occupied (as mentioned in section 65 of this Act) is exempt to the extent that it consists of, or of any of the appurtenances of, a fixed road crossing over an estuary, river or other watercourse.

(2) For the purposes of this paragraph, a fixed road crossing means a bridge, viaduct, tunnel or other construction providing a means for road vehicles or pedestrians or both to cross the estuary, river or other watercourse concerned.

(3) For the purposes of sub-paragraph (2) above-

(a) a bridge may be a fixed road crossing notwithstanding that it is designed so that part of it can be swung, raised or otherwise moved in order to facilitate passage across, above or below it; but

(b) the expression “bridge” does not include a floating bridge, that is to say, a ferry operating between fixed chains.

(4) The reference in sub-paragraph (1) above to the appurtenances of a fixed road crossing is a reference to-

(a) the carriage way and any footway thereof;

(b) any building, other than office buildings, used in connection with the crossing; and

(c) any machinery, apparatus or works used in connection with the crossing or with any of the items mentioned in paragraphs (a) and (b) above.'

(xii) property used for road user charging scheme (paragraph 18B):

'(1) A hereditament which is occupied (as mentioned in section 65 of this Act) is exempt to the extent that-

(a) it consists of a road in respect of which charges are imposed by a charging scheme under Schedule 23 to the Greater London Authority Act 1999 or Part III of the Transport Act 2000, or

(b) it is used solely for or in connection with the operation of such a scheme.

(2) But office buildings are not exempt under sub-paragraph (1)(b) above.'

(xiii) property in enterprise zones (paragraph 19):

'(1) A hereditament is exempt to the extent that it is situated in an enterprise zone.

(2) An enterprise zone is an area for the time being designated as an enterprise zone under Schedule 32 to the Local Government, Planning and Land Act 1980.'

(xiv) visiting forces etc (paragraph 19A):

'(1) A hereditament is exempt to the extent that is consists of property which is occupied for the purposes of a visiting force, or a headquarters, in pursuance of arrangements made in that behalf with any Government department.

(2) In this paragraph-

“headquarters” means an international headquarters or defence organisation designated by an Order in Council under section 1 of the International Headquarters and Defence Organisations Act 1964; and “visiting force” means any such body, contingent or detachment of the forces of any country as is a visiting force for the purposes of any provision of the Visiting Forces Act 1952.'

Paragraph 20 reads:

'(1) The Secretary of State may make regulations providing that prescribed hereditaments or hereditaments falling within any prescribed description are exempt to such extent (whether as to the whole or some lesser extent) as may be prescribed.

(2) But the power under sub-paragraph (1) above may not be exercised so as to confer exemption which in his opinion goes beyond such exemption or privilege (if any) as fulfils the first and second conditions.

(3) The first condition is that the exemption or privilege operated or was enjoyed in practice, immediately before the passing of this Act, in respect of a general rate in its application to the hereditaments prescribed or falling within the prescribed description.

(4) The second condition is that the exemption or privilege-

(a) was conferred by a local Act or order passed or made on or after 22 December 1925, or

(b) was conferred by a local Act or order passed or made before 22 December 1925 and was saved by section 117(5)

(b) of the 1967 Act.

(5) Regulations under sub-paragraph (1) above in their application to a particular financial year (including regulations amending or revoking others) shall not be effective unless they come into force before 1 January in the preceding financial year.'

[1c] The most striking divergence, from the English exemptions, arises from:

(a) inclusion of 'the whole of which' in reg.4(a) and 4(b);

(b) structure and £2,600 figure in reg.4(g); and

(c) reg.6 containing '26 weeks' in place of '6 weeks', as from 1.4.22. The contents of reg.6 affects the availability of the reg.4(a) and 4(b) exemptions. This change, from 1.4.22, was brought into force by Non-Domestic Rating (Unoccupied Property) (Wales) (Amendment) Regulations 2021 (SI 2021/118 (W.31).

[1d] To understand the term 'hereditament', the following points can be made:

(1) A unit of property that is subject to rating is described in the legislation as a 'hereditament';

(2) 'Broadly speaking a hereditament is a contiguous unit of property in the same occupation' - from footnote 2 to the Explanatory Notes to the Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Act 2021 (which also said 'Guidance on the meaning of a hereditament is available on the Valuation Office Agency’s website')

(3) The hereditament is an area of land/buildings, but it can also be a right. Readers may be familiar with a HM Land Registry plan of the land within a Title. The area within a hereditament can be visualised as being very similar. Just as with title to land, the plan operates in 3 dimensions. For instance, a hereditament consisting of a flat in a mansion block, will be (essentially) a cuboid shape, just as the actual land within the title to the flat, will (essentially) be a cuboid shape. The land within a title does not always/automatically match the land within the hereditament. For instance, (1) a hereditament might span across a number of titles; (2) part of land within a title, might be sublet, such that the sublet part is one hereditament, and the non-sublet part, is another hereditament.

(4) the Valuation Office Agency in England records all the hereditaments in England. Their database can be searched using their 'Find a property' search option, available to use for free, on their website, to locate a hereditament, here.

There are 2 lists: 

(a) local rating list - which is the one most readers will use;

(b) central rating list - which contains hereditaments spanning large areas of the country (see at the end of this footnote, for a little more detail on this)

(5) Local Government Finance Act 1988, section 64 is entitled 'Hereditaments' and subsection 1 states:

'A hereditament is anything which, by virtue of the definition of hereditament in section 115(1) of the 1967 Act, would have been a hereditament for the purposes of that Act had this Act not been passed.'

This is the main provision, but for completeness, subsections (2) and (2A) state that certain rights (respectively, (2) right to use any land for the purpose of exhibiting advertisements, and (2A) right to use any land for the purpose of operating a meter to measure a supply of gas or electricity or such other service) are defined as hereditaments.

Section 64(1) refers to section 115(1) of the General Rate Act 1967. Section 115(1) in relation to 'hereditament' read (at least as originally enacted):

'“hereditament” means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list'

(6) In Woolway (Valuation Officer) v Mazars LLP [2015] UKSC 53 [2015] A.C. 1862 ('Woolway'), Lord Sumption (with whom Lord Neuberger, Lord Carnwath, Lord Toulson and Lord Gill agreed) said, at paragraphs 1 and 4:

'The core concepts underlying the assessment of rates are that they are a tax on property and not on persons or businesses, and that the “hereditament” is the unit of assessment. Each hereditament is separately identified in the rating list and separately assessed, notwithstanding that the same occupier may have more than one.

...

“Hereditament” is a somewhat archaic conveyancing term which as a matter of ordinary legal terminology refers to any species of real property which would descend upon intestacy to the heirs at law: see section 205(1)(ix) of the Law of Property Act 1925 . In a conveyance, there is no problem about its bounds. They will be identified by the deed. But notwithstanding more than four centuries of experience, the question how a hereditament is to be identified for rating purposes remains in important respects unclear. Section 64(1) of the Local Government Finance Act 1988 defines a hereditament as anything which would before the passing of the Act have been a hereditament for the purposes of section 115(1) of the General Rate Act 1967 . That means a “property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list.” The result, in the absence of further statutory definition, is that the meaning of “hereditament” is left to be elucidated by the courts in accordance with the principles underlying the rating Acts.'

In Woolway, Lord Neuberger (with whom Lord Toulson agreed) said, at paragraphs 46 and 47:

'The statutory definition of 'hereditament' in section 115(1) of the General Rate Act 1967 states that it is such 'a unit of...property which is, or would fall to be, shown as a separate item in the valuation list.' While, at least to some extent, that is a circular definition, it does contain the expression 'unit of... property', which carries with it the notion of a single piece of property, what in Scots law is called unum quid. And, in that connection, I entirely agree that there should be no difference of approach between Scottish and English law on the issue raised on this appeal.

Normally at any rate, both as a matter of ordinary legal language and as a matter of judicial observation, a hereditament is a self-contained piece of property (ie property all parts of which are physically accessible from all other parts, without having to go onto other property), and a self-contained piece of property is a single hereditament. As the Scottish Lands Tribunal said in Burn Stewart Distillers plc v Lanarkshire Valuation Joint Board [2001] RA 110 , 140, 'the emphasis on the geographical test is an aspect of recognition that lands and heritages are physical subjects'. Thus, two separate self-contained buildings, even if sharing a common wall, would not be expected to be a single hereditament but two hereditaments. And a building no part of which was self-contained would be expected to be a single hereditament.'

While dealing with how unsatisfactory the decision in Gilbert v S Hickinbottom & Sons Ltd [1956] 2 QB 40 was, and rejecting a submission that it could be distinguished because it was decided on the meaning of 'hereditament' in Rating and Valuation Act 1925, rather than General Rate Act 1967, Lord Gill in Woolway said, at paragraph 30:

'The Gilbert case was decided on the definition of hereditament in section 68 of the Rating and Valuation Act 1925 (“the 1925 Act”); namely: “any lands, tenements, hereditaments or property which are or may become liable to any rate in respect of which the valuation list is by this Act made conclusive” In section 115(1) of the General Rate Act 1967 (“the 1967 Act”), which now applies, “hereditament” means “property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list.” Counsel for the valuation officer suggested that that the Gilbert decision should be distinguished because it was decided on the definition of hereditament in the 1925 Act, which in counsel's submission was materially different from the present definition. I do not accept that. The 1967 Act was a consolidating measure. It was reasonable in such a consolidation to recast the former definition, which suffered from circularity. In my view the reference to a “unit of … property which is, or would fall to be, shown as a separate item in the valuation list” simply means a unit of property that would constitute a separate hereditament in accordance with established legal principles....If I am right in the view that section 115(1) has not changed the law on the point...'

(7) a recent case on the meaning of hereditament, is Doyle v Roberts [2020] EWHC 659 (Admin); [2022] R.V.R. 6 ('Doyle'), a decision of Fordham J. In Doyle, Fordham J had before a council tax case, wherein the taxpayer claimed that their property was '...not a "dwelling" as defined in section 3(2) of the [Local Government Finance 1992 Act]' (paragraph 1) and so sought their deletion from the council tax list. Referring to General Rate Act 1967, section 115(1), Fordham J said, at paragraph 3:

'Certain terms, such as "hereditament", "dwelling-house" and "valuation list", were defined (section 115(1))....The 1967 Act was repealed by Schedule 13 of the 1988 Act, but the concept of "hereditament" from section 115(1) of the 1967 Act was subsequently retained as an operative concept: under section 64(1) of the 1988 Act and under section 3(2) (a) of the 1992 Act.'

Under the subheading 'Analysis', Fordham J said, at paragraphs 17-18:

'[the Appellant] is quite right to identify as the "correct body of words" the definition of "hereditament" found in section 115(1) of the 1967 Act. That is: "property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list". Parliament carried that concept of "hereditament" through into the council tax regime of the 1992 Act (section 3 (2)(a)), just as it had carried that concept of "hereditament" through into the NDR regime in Part 3 of the 1988 Act (section 64(1)). It is also true to say "hereditament" is not an all-embracing concept. ... it would not extend to a lease which cannot descend on intestacy to heirs at law (see Woolway paragraph 4). On the other hand..."hereditament" would, in principle, extend to a unit of property occupied as living accommodation under that very same lease. ...the meaning of "hereditament" in section 115(1) of the 1967 Act only takes one so far: the meaning of "hereditament" has to some extent been "left to be elucidated by the courts in accordance with the principles underlying the rating Acts" (Lord Sumption in Woolway at paragraph 4). The essential concept is concerned to identify a "unit of property" which is, in principle, rateable and includable within a valuation list.

It is wrong to say that under the 1967 Act a conventional dwelling – a privately-owned house or flat, occupied for the purposes of living accommodation and without a 'business' element – fell outside the scope of section 115(1) ("hereditament"). Such a property could clearly be a unit of property liable to a rate and includable within a valuation list. There is nothing in the 1967 Act which indicates that the "general rate" provisions of that Act were limited to a 'business' context. Nothing in that Act supports the contention...'

(8) as to treating 'contiguous' land as 1 or more hereditaments, see section 64(3), (3ZA), (3ZB), (3ZC) and (3ZD).

(9) if the hereditament relates to mooring, see section 64(3A)'

Returning to the Local Rating List and the Central Rating List. A useful guide to these can be extracted from a Government Consultation 'Business rates revaluation 2023: the central rating list', issued on 16.8.21. Under the heading 'The current principles of the central rating list', it said:

1. Units of property liable for business rates – called hereditaments – are normally assessed on rating lists held by billing authorities. The hereditaments appear on the list in the area in which they are located. Hereditaments which cross more than one billing authority area appear in the list which it appears to the Valuation Officer contains the largest part by value.

2. In addition to local rating lists, the Secretary of State also holds a central list which contains hereditaments which, by their nature are unsuitable for including in local lists (e.g. utility networks). The central rating list can be viewed on the Valuation Office Agency’s website. Hereditaments appearing on the central rating list do not appear on local rating lists. The business rates bill for central list hereditaments is paid to the Secretary of State and then passed to the Treasury.

3. In December 2018, as part of its consultation document on business rates retention reform, the government set out the criteria used by the Secretary of State to inform decisions on whether a hereditament should appear on the central rating list. The criteria are reproduced at Annex A. The government continues to consider these criteria to be the relevant considerations for deciding whether hereditaments appear on the central rating list.'

That Annex A, entitled Central List criteria, reads:

'Introduction

1. The starting principle for the updating of the central non-domestic rating list is that, as much as is practical, authorities and rate payers will see no loss and no gain as a result of movement between lists.

2. Under the Local Government Finance Act 1988 the Secretary of State has the power to designate hereditaments to the central non-domestic rating list. Ministerial decisions are likely to be informed by the following criteria, which currently form the primary basis of consideration:

a. The nature and use of the property;

b. The size and geographical spread of the property; and

c. The suitability or otherwise for assessment of the property on local non-domestic rating lists.

3. These criteria will remain the primary basis on which suitability for listing in the central list is assessed, in the majority of cases. Typically, properties meeting these criteria are likely to be used for infrastructure or utilities; be considered to be networks; and/or be administratively difficult to assess as single entities. The criteria will be used in combination to inform the overall suitability of hereditaments for listing in the central list.

Criterion a - The nature and use of the hereditament

4. The central list is used for networks. Although there is no specific definition of a network, they are typically: cables for electricity and communication; pipelines for water, gas and other materials; railways; and certain items associated with those networks (electricity and gas meters).

5. Generally, the occupiers of network hereditaments are statutory undertakers but that is not always the case. Statutory undertakers are companies or other bodies with legal powers to undertake works such as install electricity cables or dig up the road in order for them to fulfil their statutory function (usually the provision of a utility such as water and gas). Occupiers may be considered similar to statutory undertakers in other circumstances, such as where they are involved with the provision of a utility and they have to comply with certain regulatory conditions set by a regulator.

Criterion b - The size and geographical spread of the property

6. Networks can vary in size and not all merit assessment on the central list. In some cases, it will be clear that they belong on local lists – perhaps because they are contained entirely within a single local list boundary or because they have a small rateable value. For larger networks the Secretary of State must decide at what point they more appropriately belong in the central list. In doing this, it will not normally be appropriate to develop standard rules (such as length or number of local authorities crossed) as that may lead to arbitrary outcomes, but rather to look at the overall size and spread of the property and how it fits within the local lists system. However, some assessments with small rateable values may still span several rating list areas. Therefore, the Secretary of State may consider only moving assessments whose rateable value is more than a particular level, so as to ensure the use and number of ratepayers on central rating list remains proportionate.

7. Although the number of lists over which the property crosses would form part of this consideration, in many cases it will not be possible to determine precisely how many rating lists are crossed by a network due to the administrative practices of the occupier.

Criterion c - The suitability or otherwise for assessment of the property on local non-domestic rating lists

8. As business rates is a local tax, if a hereditament can reasonably be assessed on the local list then it should stay on the local list.

9. The rules for properties which cross rating list boundaries provide for them to appear in the list which the valuation officer believes contains the largest part of the rateable value. In most cases this will provide a reasonable outcome. A property is very unlikely to span more than one boundary and, therefore, in that normal case, at least half of the rateable value of the property will be within the area of the local authority which contains the full rating assessment.

10. However, where hereditaments cover large areas and many local authorities, the largest part of the rateable value falling within an area may still only be a small proportion of the total rateable value of the property. As a result, the rateable value which is attributable to a local list area in which the property is assessed may be small in comparison to the total rateable value of the rating assessment. This means that it may be difficult to identify a single local rating list on which assessment of a network would be a reasonable outcome.

11. Furthermore, networks most appropriately listed in the central list may be contiguous units of property, for example in a telecommunication network where data is transmitted throughout the network as part of a single operation. An attempt to accurately capture the rateable value of the networks for each local rating list would therefore create artificial assessments unrelated to the actual business.'

[1e] By reg.7(1) of The Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008 (SI 2008/386). The previous applicable statutory instrument (i.e. the previous regulations from the Secretary of State), were Non-Domestic Rating (Unoccupied Property) Regulations 1989 (SI 1989/2261), also made under the current Local Government Finance Act 1988. For those interested in seeing how the exceptions changed between the 1989 and the 2008 Regulations, the most material regulation in the 1989 Regulations to view, is reg.2, which contains what later came to appear (to a very large extent, but not exactly) in the reg.3 and reg.4 to the 2008 Regulations.

In the last version to apply to England (but not Scotland and Wales), reg.2 of the 1989 Regulations (now obsolete) read:

'2.- Property liable for unoccupied property rates
(1)  The class of non-domestic hereditaments prescribed for the purposes of section 45(1) of the Act consists of all relevant non-domestic hereditaments to which none of the conditions in paragraph (2) applies.
(2)  The conditions are that–
(a)  the whole hereditament has, subject to paragraph (3), been unoccupied for a continuous period not exceeding three months;
(b)  its owner is prohibited by law from occupying it or allowing it to be occupied;
(c)  it is kept vacant by reason of action taken by or on behalf of the Crown or any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it;
(d)  it is the subject of a building preservation notice as defined by section 58 of the Town and Country Planning Act 1971 or is included in a list compiled under section 54 of that Act;
(e)  it is included in the Schedule of monuments compiled under section 1 of the Ancient Monuments and Archaeological Areas Act 1979;
(f)  it is a qualifying industrial hereditament;
(g)   its rateable value is less than £2,200;
(h)  the owner is entitled to possession only in his capacity as the personal representative of a deceased person;
(i)  there subsists in respect of the owner's estate a bankruptcy order within the meaning of Parts VIII to XI of the Insolvency Act 1986;
(j)  the owner is entitled to possession of the hereditament in his capacity as trustee under a deed of arrangement to which the Deeds of Arrangement Act 1914 applies;
(k)  the owner is a company which is subject to a winding-up order made under the Insolvency Act 1986 or which is being wound up voluntarily under that Act;
(l)  the owner is entitled to possession of the hereditament in his capacity as liquidator by virtue of an order made under section 112 or section 145 of the Insolvency Act 1986.
(3)  Where a hereditament which has been unoccupied becomes occupied on any day and becomes unoccupied again on the expiration of a period of less than six weeks beginning with that day, then for the purposes of ascertaining whether the hereditament has been continuously unoccupied for the period mentioned in paragraph (2)(a) it shall be treated as having been unoccupied on that day and throughout the period.
(4)  For the purpose of paragraph (2)(a), a hereditament which has not previously been occupied shall be treated as becoming unoccupied–
(a)  on the day determined under paragraph 8 of Schedule 1 to the General Rate Act 1967, or
(b)  on the day determined under Schedule 4A to the Act2, or
(c)  where neither (a) nor (b) applies, on the day for which the hereditament is first shown in a local rating list,
 whichever day first occurs.
(5)
(a)  In paragraph (1), “relevant non-domestic hereditament”  means any non-domestic hereditament consisting of, or of part of, any building, together with any land ordinarily used or intended for use for the purposes of the building or part, and
(b)  in paragraph (2)(f)–
“qualifying industrial hereditament”  means any hereditament other than a retail hereditament in relation to which all buildings comprised in the hereditament are–
(i)  constructed or adapted for use in the course of a trade or business; and
(ii)  constructed or adapted for use for one or more of the following purposes, or one or more such purposes and one or more purposes ancillary thereto:-
(a)  the manufacture, repair or adaptation of goods or materials, or the subjection of goods or materials to any process;
(b)  storage (including the storage or handling of goods in the course of their distribution);
(c)  the working or processing of minerals;
(d)  the generation of electricity; and
“retail hereditament”  means any hereditament where any building or part of a building comprised in the hereditament is constructed or adapted for the purpose of the retail provision of–
(i)  goods, or
(ii)  services, other than storage for distribution services, on or from the hereditament.'

Key changes between the 1989 and the 2008 Regulations are:

(1) qualifying industrial hereditament were exemption, whereas now they only receive 6 months exemption;

(2) there is no exemption for owners in administration. In Re Graham [2007] 3 WLUK 681 (Ch), a company in administration owned 2 properties which were incurring business rates (since there was then no exemption for companies in administration). The administrators applied under paragraph 79(1) of Schedule B1 to the Insolvency Act 1986 (paragraph 9), to convert the company from administration to company voluntary liquidation, as 'unoccupied property rates would not be an expense of a liquidation' (paragraph 6). It was said that '...the penalty for continuing the administration is exposure to an unoccupied business rates charge...' (paragraph 17). The application was successful (paragraphs 17-18)

For those wanting to go back even further in terms of legal history, the predecessor to Local Government Finance Act 1988 and 1989 Regulations, was Schedule 1 to the General Rate Act 1967. Schedule 1, paragraph 2 contains some recognisable exceptions. Under the General Rate Act 1967: (1) there was only unoccupied rates due where the hereditament was in a rating area subject to a section 17 resolution of the General Rate Act 1967 (Paragraph 1(1), Schedule 1 to the General Rates Act 1967); (2) the quantum of rates was 50% of what would be payable if it were occupied (Paragraph 1(2), Schedule 1 to the General Rates Act 1967). But no rates were payable under paragraph 1(1), Schedule 1 to the General Rates Act 1967 where paragraph 2 of Schedule 1 to the General Rates Act 1967 applied. Paragraph 2 read (at least when first enacted):

'No rates shall be payable under paragraph 1 of this Schedule in respect of a hereditament for, or for any part of the three months beginning with the day following the end of, any period during which-

(a) the owner is prohibited by law from occupying the hereditament or allowing it to be occupied;

(b) the hereditament is kept vacant by reason of action taken by or on behalf of the Crown or any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it;

(c) the hereditament is the subject of a building preservation order under section 30 of the Town and Country Planning Act 1962, or is included in a list compiled or approved under section 32 of that Act, or is notified to the rating authority by the Minister as a building of architectural or historic interest;

(d) the hereditament is the subject of a preservation order or an interim preservation notice under the Ancient Monuments Acts 1913 to 1953, or is included in a list published by the Minister of Public Building and Works under those Acts;

(e) an agreement is in force with respect to the hereditament under section 56(1)(a) of this Act; or

(f) the hereditament is held for the purpose of being available for occupation by a minister of religion as a residence from which to perform the duties of his office.'

[1f] In The Queen on the Application of Burnley Borough Council v Huron Properties Ltd [2016] EWHC 3803 (Admin), Kerr J described, at paragraphs 12 to 17, the statutory scheme, as follows:

'Under what is now section 45 of the Local Government Finance Act 1988, a hereditament is subject to a non-domestic rate when empty if it falls within a class prescribed by the Secretary of State by regulations (section 45(1)(d)). The relevant regulations now are the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008.

In those regulations (regulation 2) a "relevant non-domestic hereditament" is defined as any non-domestic hereditament:

"consisting of, or of part of, any building, together with any land ordinarily used or intended for use for the purposes of the building or part …".

Regulation 3 prescribes as subject to a non-domestic rate all relevant non-domestic hereditaments other than those described in regulation 4, which creates exceptions.'

[1g] In relation to regulation 4(e), the Divisional Court (Lord Lane LCJ and Boreham J) in Providence Properties Ltd v Liverpool City Council [1980] RA 189, [1980] Lexis Citation 733 hinted (about regulation 4(e)'s statutory predecessor in the General Rate Act 1967, Schedule 1, paragraph 2(c)) as the reason for the existance of this exemption. That:

We are reminded, and I keep in mind, the reason for the existence of listed buildings, and one accpets [sic], rightly, that they carry with them an extra burden to the owner over and above the burden of lack of occupation.'

[2] Section 65 of the Local Government Finance Act 1988, entitled 'Owners and occupiers', makes statutory provision in relation to a number of scenarios:

(1) Where plant, machinery or equipment is kept in or on the hereditament, subsection (5) is relevant:

'A hereditament which is not in use shall be treated as unoccupied if (apart from this subsection) it would be treated as occupied by reason only of there being kept in or on the hereditament plant, machinery or equipment-

(a) which was used in or on the hereditament when it was last in use, or

(b) which is intended for use in or on the hereditament.'

(2) Where the hereditament was used for the holding of public meetings in furtherance of a person’s candidature at a parliamentary or local government election, or by a returning officer for the purpose of taking the poll in a parliamentary or local government election, then subsections (6) and (7) are relevant:

'A hereditament shall be treated as unoccupied if (apart from this subsection) it would be treated as occupied by reason only of -

(a) the use of it for the holding of public meetings in furtherance of a person’s candidature at a parliamentary or local government election, or

(b) if it is a house, the use of a room in it by a returning officer for the purpose of taking the poll in a parliamentary or local government election.

(7) In subsection (6) above “returning officer” shall be construed in accordance with section 24 or 35 of the Representation of the People Act 1983 (as the case may be).'

(3) Where the hereditament is a section 64(2) right - i.e. a right to use any land for the purpose of exhibiting advertisements, subsection (8) applies:

'A right which is a hereditament by virtue of section 64(2) above shall be treated as occupied by the person for the time being entitled to the right.'

(4) Where land is used for the exhibition of advertisements or for the erection of a structure used for the exhibition of advertisements (but section 64(2) does not apply), then subsection 8A is relevant:

'In a case where-

(a) land consisting of a hereditament is used (permanently or temporarily) for the exhibition of advertisements or for the erection of a structure used for the exhibition of advertisements,

(b) section 64(2) above does not apply, and

(c) apart from this subsection, the hereditament is not occupied,

the hereditament shall be treated as occupied by the person permitting it to be so used or, if that person cannot be ascertained, its owner.'

[3] Considering, in more detail, the cases of: (a) Tower Hamlets LBC v St Katherine by the Tower (1983) 264 EG 529 ('St Katherine'); (b) Regent Lion Properties Ltd v Westminster City Council [1990] RA 121, CA ('Regent Lion'); and (c) Easiwork Homes Ltd v Redbridge London Borough Council [1970] 2 QB 406 ('Easiwork'):

(1) Pitchford LJ in Pall Mall Investments (London) Ltd v Gloucester City Council [2014] PTSR 1184 ('Gloucester City') accepted, at paragraph 19 ('I agree with both these propositions as stated'), that St Katherine established the following propositions:

'(i) there need be no issue of a prohibition notice before regulation 4(c) of the 2008 Regulations provides an exemption from liability for the unoccupied rate under section 45 of the 1988 Act; and

(ii) if occupation is prohibited by law, the fact that prohibition may arise from inactivity on the part of the owner is immaterial.'

Later, Pitchford LJ said in Gloucester City, at paragraph 24:

'[Counsel for the owner/alleged ratepayer Pall Mall] seeks to derive from the decision in the Regent Lion case the propositions that: (i) express prohibition from occupation by notice is not essential to qualification for an exemption provided that the necessary effect of a notice is to prohibit occupation; and (ii) the court will, when considering the question whether occupation is prohibited by law, take the state of the premises as it was and not as it may have been if remedial work had been completed. Again, as stated, these are propositions that I can accept.'

(2) St Katherine related to an exemption contained paragraph 2(a) of Schedule 1 to the General Rate Act 1967, reg.4(c)'s predecessor. Pitchford LJ in Gloucester City said of paragraph 2(a) of Schedule 1, that it was 'in materially identifical terms to the current regulation 4(c)' (paragraph 16).

(3) In Regent Lion, the billing authority sought unoccupied business rates from Pall Mall for the liability period 1.4.84 to 25.12.85 (c.21 months). The leaseholder/alleged ratepayer Pall Mall had had subtenants for the premises PanAm, who vacated the premises on 24.11.81, but who's lease did not terminate until 31.3.82. Regent Lion then paid the unoccupied rate due from 1.4.82 to 31.3.84. Just before 31.3.84, Regent Lion began refurbishment works to convert it from: (a) the air terminal (as used by the subtenants PanAm (pursuant to personal, and importantly, time limited, planning permission) to (b) a 'shell condition', with a view to work to develop the land into a parade of 12 shops (and more), pursuant to other planning permission. However, on 30.3.84, the local authority (which was the same entity as the billing authority) served a prohibition notice under the Health and Safety at Work Act 1974 upon, in effect, Pall Mall. The prohibition notice stated that due to the execution of building 'refurbishment works', there was an imminent risk of serious personal injury, because of the presence, in the building/debris, of brown asbestos. That the 'refurbishment works' '...shall not be carried on by you or under your control immediately unless the said contraventions and matters included in the attached schedule, which forms part of this notice, have been remedied.' Following the service of this prohibition notice, the refurbishment work stopped. The 'remedial works' (required by the prohibition notice, as per the 'unless' part, and distinct from the 'refurbishment works'), were completed on 21.5.85 (and so, the direction not to continue the refurbishment works therefore ceased to apply). The refurbishment works were then re-commenced and completed, with the premises sublet again, to a new subtenant, who became the premises' rateable occupier on 25.12.85.

The billing authority sought unoccupied business rates for the premises for the period: 1.4.84 to 25.12.85 (c.20 months). This period needs to be subdivided into:

(a) 1.4.84 to 21.5.85 (c.14 months) - i.e. up to the date the remedial works were completed; and

(b) 22.5.85 to 25.12.85 (c.6 months).

For Period (a): Pall Mall argued that they were exempt for part of this, from 1.4.84 to 21.5.85, on the exceptions later contained in reg.4(c) and 4(d) (then contained in paragraph 2(a) and (b) of Schedule 1 to the General Rate Act 1967 - quoted at the end of this footnote, for completeness). Keeping with reg.4(c) for present purposes (though noting the claim to 4(d) exemption was dismissed - page 129-130 Regent Lion; paragraph 22 Gloucester City), the issue then was: during this period, was the owner “prohibited by law” within the meaning of paragraph 2(a). The Court of Appeal in Regent Lion framed the question before it as: '[Where] the effect of a prohibition notice is proved to be that the hereditament may not be rateably occupied until some steps have been taken, is its occupation prohibited by law?' (page 131 of Regent Lion; see also, paragraph 22 of Gloucester City).

Gildewell LJ (with whom both Mann LJ and Sir Denys Buckley agreed) said in Regent Lion, at page 131:

'The factual position here was that the planning permission for use as an air terminal expired on 31 March 1984. Thereafter, during the period at issue, there was no use of the hereditament for that purpose for over two years after PanAm vacated. In order that the hereditament might be occupied for some other commercial purpose, the respondent company needed to return it firstly to its original condition as a shell. It was the work necessary to put it in that condition which was prohibited by the notice. This, therefore, had the inevitable effect of preventing rateable occupation until both the remedial work to cure the asbestos problem and the subsequent refurbishment work had been carried out. Since that was the inevitable effect, in my judgment the effect of the notice was to prohibit by law the occupation of the premises until the remedial work had been completed. That was on the 21 May 1985.'

Consequently, for Period (a), the exemption (now in) reg.4(c) applied.

For Period (b): The Regent Lion's case was that, since there was no longer extant planning permission for the use of the property in its current condition, it was prohibited by law from occupying the property. To put this another way, Regent Lion contended that 'the lack of planning permission for any use of the hereditament amounted to a prohibition by law from allowing the hereditament to be occupied.'

Having considered the authorities, Glidewell LJ in Regent Lion concluded, at page 136:

'In my judgment, the law does not prohibit an owner or occupier of property from using it for a particular purpose simply because planning permission for that use is necessary under the Town and Country Planning Act 1971 and has not been granted. Such a use becomes prohibited if, and only if, an enforcement notice is served and takes effect, or a stop notice is served, or if by other processes an injunction is granted against that particular use.'

Mann LJ, with whom Sir Denys Buckley also agreed with, added, for this period, that:

'Unless there is an injunction or an enforcement notice, I do not think that occupation could be said to be prohibited by law simply by reason of the absence of a planning permission. It is not.'

Consequently, for Period (b), the exemption (now in) reg.4(c) did not apply.

As to Easiwork, in Gloucester City, Pitchford LJ had the following to say, at paragraphs 28 and 29, about Easiwork:

'As for the purpose of the exemption in the context in which it appears, in Easiwork Homes Ltd v Redbridge London Borough Council [1970] 2 QB 406 the Divisional Court considered liability for a domestic rate during a period when a block of flats was being upgraded. Paragraph 1 of Schedule 1 to the 1967 Act provided that where a relevant hereditament was unoccupied for a continuous period exceeding three months the owner should be rated as if the property was occupied. It was argued on behalf of the ratepayer that there should be implied into paragraph 1 a requirement that the property should be physically capable of occupation. The Divisional Court rejected this argument. Bridge J, delivering a judgment with which the other members of the court agreed, noted that paragraph 10 of Schedule 1 provided that structural alteration of a building may render it no longer a hereditament liable to rates. It was therefore unlikely that the exemption should apply in the case of a property that was not being structurally altered to the effect contemplated by paragraph 10. As to the identification of the mischief to which the statute was aimed, Bridge J recognised the attractiveness of the argument that the true purpose of the legislation was to penalise property owners who, for the purposes of capital gain, kept their properties unoccupied for long periods when they might be providing useful accommodation. This property owner was, for the benefit of the community, attempting to upgrade domestic accommodation for occupation. However, Bridge J concluded that this was to a large extent counter-balanced by the rating authority's argument that, at p 415A:

“if the statute is to be construed so as to exclude liability under these provisions in respect of property which for the time being is incapable of occupation, it would open the door to widespread abuse in that it would be open to any property owner anxious to keep his property unoccupied for a substantial period of time simply to remove, say, the sanitary fittings and part of the plumbing in order to be able to say that the property was for the time being incapable of occupation.”

[Counsel for the alleged ratepayer/Pall Mall] rightly observed that these comments were made in relation to a different legal issue, namely whether an exemption should be read into words that, on their face, did not permit it.'

Pitchford LJ went to to set down his view (as quoted in the main body of this article) that Parliament, when creating reg.4(c), will not have intended that owners should establish an exemption merely by inactivity resulting in dilapidation of the building, except in cases of necessary (paragraph 29).

For completeness, paragraphs 2(a) and (b) of Schedule 1 to the General Rate Act 1967 (now obsolete), read:

'No rates shall be payable under paragraph 1 of this Schedule in respect of a hereditament for, or for any part of the standard period beginning with the day following the end of, any period during which –

(a) the owner is prohibited by law from occupying the hereditament or allowing it to be occupied;

(b) the hereditament is kept vacant by reason of action taken by or on behalf of … any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it'.

[4] Schedule 1 to the General Rates Act 1967, paragraph 2 (now obsolete) read (at least when first enacted):

'No rates shall be payable under paragraph 1 of this Schedule in respect of a hereditament for, or for any part of the three months beginning with the day following the end of, any period during which-

(a) the owner is prohibited by law from occupying the hereditament or allowing it to be occupied;

(b) the hereditament is kept vacant by reason of action taken by or on behalf of the Crown or any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it;

(c) the hereditament is the subject of a building preservation order under section 30 of the Town and Country Planning Act 1962, or is included in a list compiled or approved under section 32 of that Act, or is notified to the rating authority by the Minister as a building of architectural or historic interest;

(d) the hereditament is the subject of a preservation order or an interim preservation notice under the Ancient Monuments Acts 1913 to 1953, or is included in a list published by the Minister of Public Building and Works under those Acts;

(e) an agreement is in force with respect to the hereditament under section 56(1)(a) of this Act; or

(f) the hereditament is held for the purpose of being available for occupation by a minister of religion as a residence from which to perform the duties of his office.'

[5a] The reference to 'section 54' is a reference to section 54 of the Town and Country Planning Act 1971. Section 54 is the predecessor to section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 - the section which currently governs the listing of buildings. For completeness, section 54 (now obsolete) was entitled 'Lists of buildings of special architectural or historic interest' and read (at least when originally enacted):

'(1) For the purposes of this Act and with a view to the guidance of local planning authorities in the performance of their functions under this Act in relation to buildings of special architectural or historic interest, the Secretary of State shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by other persons or bodies of persons, and may amend any list so compiled or approved.

(2) In considering whether to include a building in a list compiled or approved under this section, the Secretary of State may take into account not only the building itself but also-

(a) any respect in which its exterior contributes to the architectural or historic interest of any group of buildings of which it forms part; and

(b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building.

(3) Before compiling or approving, with or without modifications, any list under this section, or amending any list thereunder the Secretary of State shall consult with such persons or bodies of persons as appear to him appropriate as having special knowledge of, or interest in, buildings of architectural or historic interest.

(4) As soon as may be after any list has been compiled or approved under this section, or any amendments of such a list have been made, a copy of so much of the list as relates to any county borough, London borough or county district, or of so much of the amendments as relates thereto, as the case may be, certified by or on behalf of the Secretary of State to be a true copy thereof, shall be deposited with the clerk of the council of that borough or district, and also, where that council is not the local planning authority, with the clerk of the local planning authority.

(5) A copy of anything required by subsection (4) of this section to be deposited with the clerk of a London borough shall be deposited also with the clerk of the Greater London Council.

(6) Any copy deposited under subsection (4) of this section shall be registered in the register of local land charges in such manner as may be prescribed by rules made for the purposes of this section under section 15(6) of the Land Charges Act 1925 by the proper officer of the council of the county borough, London borough or county district.

(7) As soon as may be after the inclusion of any building in a list under this section, whether on the compilation or approval of the list or by the amendment thereof, or as soon as may be after any such list has been amended by the exclusion of any building therefrom, the council of the county borough, London borough or county district in whose area the building is situated, on being informed of the fact by the Secretary of State, shall serve a notice in the prescribed form on every owner and occupier of the building, stating that the building has been included in, or excluded from, the list, as the case may be.

(8) The Secretary of State shall keep available for public inspection, free of charge at reasonable hours and at a convenient place, copies of all lists and amendments of lists compiled, approved or made by him under this section; and every authority with whose clerk copies of any list or amendments are deposited under this section shall similarly keep available copies of so much of any such list or amendment as relates to buildings within their area.

(9) In this Act “listed building” means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and, for the purposes of the provisions of this Act relating to listed buildings and  building preservation notices, any object or structure fixed to a building, or forming part of the land and comprised within the curtilage of a building, shall be treated as part of the building.

(10) Every building which immediately before 1st January 1969 was subject to a building preservation order under Part III of the Act of 1962 but was not then included in a list compiled or approved under section 32 of that Act, shall be deemed to be a listed building; but the Secretary of State may at any time direct, in the case of any building, that this subsection shall no longer apply to it and the council of the county borough, London borough or county district in whose area the building is situated, on being notified of the Secretary of State's direction, shall give notice of it to the owner and occupier of the building.

(11) Before giving a direction under subsection (10) of this section in relation to a building, the Secretary of State shall consult with the local planning authority and with the owner and the occupier of the building.'

[5b] In Ge Bowra Group Ltd v Thanet DC [2007] EWHC 1077 (Admin); [2007] RVR 120 ('Bowra'), the facts were:

(1) Billing Authority issued an application by way of complaint in the Magistrates Court, seeking a liability order against the respondent property owner, for unpaid and (allegedly) due Business Rates in respect a hereditament consisting of the first and second floors of a building known as No.42;

(2) No.42 was a Listed Building and it consisted of 4 floors. The basement and ground floor were a separate hereditament, occupied by the respondent's tenants, who (i.e. the tenants) duly paid Business Rates. Nothing further need be said about this hereditament.

(3) the respondent denied it was liable for Business Rates on its (first and second floor) hereditament, arguing its hereditament was unoccupied and that it benefited from the Listed Building exemption;

(4) The Magistrates Court held that their hereditament did not come within the exemption.

[5c] In Planning (Listed Buildings and Conservation Areas) Act 1990, section 1 is entitled 'Listing of buildings of special architectural or historic interest' and reads (so far as might be materially relevant):

'(1) For the purposes of this Act and with a view to the guidance of local planning authorities in the performance of their functions under this Act and the principal Act in relation to buildings of special architectural or historic interest, the Secretary of State shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by the Historic Buildings and Monuments Commission for England (in this Act referred to as “the Commission”) or by other persons or bodies of persons, and may amend any list so compiled or approved.

...

(3) In considering whether to include a building in a list compiled or approved under this section, the Secretary of State may take into account not only the building itself but also-

(a) any respect in which its exterior contributes to the architectural or historic interest of any group of buildings of which it forms part; and

(b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a manmade object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building.

(4) Before compiling, approving (with or without modifications) or amending any list under this section in relation to buildings which are situated in England the Secretary of State shall consult-

(a) ...with the Commission; and

(b) with such other persons or bodies of persons as appear to him appropriate as having special knowledge of, or interest in, buildings of architectural or historic interest.

(4A) Section 2A makes provision about consultation on amendments of any list under this section to include or exclude a building which is situated in Wales.

(5) In this Act “listed building” means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act-

(a) any object or structure fixed to the building;

(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st July 1948,

shall, subject to subsection (5A)(a), be treated as part of the building.

(5A) In a list compiled or approved under this section, an entry for a building situated in England may provide-

(a) that an object or structure mentioned in subsection (5)(a) or (b) is not to be treated as part of the building for the purposes of this Act;

(b) that any part or feature of the building is not of special architectural or historic interest.

(6) Schedule 1 shall have effect for the purpose of making provisions as to the treatment as listed buildings of certain buildings formerly subject to building preservation orders.'

In section 2, entitled 'Publication of list', there is provision, :

(1) subsection 2(1), for the Secretary of State is to deposit a copy of the List with each relevant body, to the extent relevant for the relevant area.

(2) subsection 2(2), for notification to 'every owner and occupier of the building, stating that the building has been included in or excluded from the list.'

(3) subsection 2(3), for the Secretary of State shall keep available for public inspection free of charge at reasonable hours and at a convenient place, copies of all lists and amendments of lists, compiled, approved or made by him under section 1.

(5) subsection 2(4), for every authority with whom copies of any list or amendments are deposited under this section shall similarly keep available copies of so much of any such list or amendment as relates to buildings within their area.

Wales (not England) has additional provisions about 'interim protection' - see sections 2A to 2D inclusive.

[5d] In Planning (Listed Buildings and Conservation Areas) Act 1990, section 3 is entitled 'Temporary listing in England: building preservation notices' and reads:

'(1) If it appears to a local planning authority in England who are not a county planning authority area that a building in their area which is not a listed building -

(a) is of special architectural or historic interest; and

(b) is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,

they may serve on the owner and occupier of the building a notice (in this Act referred to as a “building preservation notice”).

(2) A building preservation notice served by a local planning authority under this section shall -

(a) state that the building appears to them to be of special architectural or historic interest and that they have requested the Secretary of State to consider including it in a list compiled or approved under section 1; and

(b) explain the effect of subsections (3) to (5) and Schedule 2.

(3) A building preservation notice under this section 4 -

(a) shall come into force as soon as it has been served on both the owner and occupier of the building to which it relates; and

(b) subject to subsection (4), shall remain in force for six months from the date when it is served or, as the case may be, last served.

(4) A building preservation notice under this section shall cease to be in force if the Secretary of State -

(a) includes the building in a list compiled or approved under section 1, or

(b) notifies the local planning authority in writing that he does not intend to do so.

(5) While a building preservation notice under this section is in force with respect to a building, the provisions of this Act (other than section 59) and the principal Act shall have effect in relation to the building as if it were a listed building.

(6) If, following the service of a building preservation notice under this section, the Secretary of State notifies the local planning authority that he does not propose to include the building in a list compiled or approved under section 1, the authority shall immediately give notice of that decision to the owner and occupier of the building.

(7) Following such a notification by the Secretary of State no further building preservation notice in respect of the building shall be served by the local planning authority within the period of 12 months beginning with the date of the notification.

(8) The Commission shall, as respects any London borough, have concurrently with the council of that borough the functions of a local planning authority under this section; and references to the local planning authority shall be construed accordingly.'

Section 3A, entitled 'Temporary listing in Wales: building preservation notices' applies to Wales.

Section 4 is entitled 'Temporary listing in urgent cases' and reads:

'(1) If it appears to the local planning authority to be urgent that a building preservation notice should come into force, they may, instead of serving the notice on the owner and occupier of the building, affix the notice conspicuously to some object on the building.

(2) The affixing of a notice under subsection (1) shall be treated for all the purposes of sections 3 and 3A, this section, sections 5 and 10 to 26 and Schedule 2 as service of the notice.

(3) A notice which is so affixed must explain that by virtue of being so affixed it is treated as being served for those purposes.

(4) The Commission shall, as respects any London borough, have concurrently with the council of that borough the functions of a local planning authority under this section; and references to the local planning authority shall be construed accordingly.'

[5e] In The Queen on the Application of Burnley Borough Council v Huron Properties Ltd [2016] EWHC 3803 (Admin), Kerr J said, at paragraph 16:

'As is well known, the Secretary of State in deciding whether to list a building has to consider whether the building is of "special architectural or historic interest." That is section 1(1) of the 1990 Act.'

[6a] In The Queen on the Application of Burnley Borough Council v Huron Properties Ltd [2016] EWHC 3803 (Admin) ('Huron'), Kerr J said, at paragraph 18

'[Counsel for the appellant] submitted that [Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168, [1997] 2 WLUK 113]  is authority for the proposition that the Secretary of State can list part of a building and that proposition is not disputed.'

In Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168, [1997] 2 WLUK 113, the listed part of the building in question was its façade, chimney breasts and chimney stacks which were considered to be of special architectural or historical interest

[6b] In City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447, [1997] 3 PLR 71 ('City of Edinburgh'), an issue arose as to whether a former riding school was a listed building. If it was, consent would be required to demolish it. In the House of Lords, it was held that a reporter in a planning appeal had been wrong in deciding that it was not. The only possible construction of the list entry was that it was a listed building.

In City of Edinburgh, Lord Hope pointed out that that list is not required to follow any particular format and that a list entry can comprise more than just the name of a building that can include some descriptive material. On the facts of the case it was necessary to look at some of that descriptive material to ascertain the scope of what had been listed and reach the conclusion that the building in question was a listed building.

Lord Clyde in City of Edinburgh, said, at page 81:

'Ambiguity only arises if the words in the brackets are read, as the reporter read them, as if they were intended to refer to buildings built during the specified years. But that is not what is stated and that is not the only possible construction. Even if there was a conflict between the two parts of the list it would be proper to find a 'construction which would make sense of the whole and that can be readily done…'

[6c] Kerr J gives a illuminating summary of Barratt v Ashford Borough Council [2011] P & CR 21, CA, from paragraphs 25 to 28 of The Queen on the Application of Burnley Borough Council v Huron Properties Ltd [2016] EWHC 3803 (Admin):

'There the issue was whether a particular farm worker's cottage was or was not a listed building. If it was, works being carried out there were unauthorised for want of listed building consent.

26. The Court of Appeal upheld the decision of the recorder below that the building was indeed listed, albeit not by name in the listing entry. That gave as the name and address "High House Cottage, Corkscrew Lane, Stone-cum-Ebony" while the cottage where the works were being done was called "Hayes Cottage, Ebony Road, Stone-cum-Ebony". The Court of Appeal took into account an ordnance survey reference which when looked up on the relevant ordnance survey map included the property in issue, Hayes Cottage.

27. Mummery LJ said this at paragraph 36 and following:

"36. The next question is that of interpretation of the list and its contents in the light of the legislation. What is the proper approach to interpreting an entry in the list? …the ordinary and natural meaning of a document is usually determined by the court reading it as a whole in the setting of its relevant surrounding circumstances. In my judgment, the court must consider [the] whole of the entry in order to determine the meaning it would have for the reasonable person inspecting the list.

37. The judgments in the City of Edinburgh case took that approach. Lord Clyde, with whom all the other members of the Appellate committee, including Lord Hope, agreed, said that the question of what buildings are listed is one of interpretation and is a question of law for the court. It is not a question of fact. I agree with Mr Harrison that it is not a matter of the subjective intentions of those participating in, or responsible for, the compilation of the list, nor is it a matter that depends on the actual state of knowledge of the person potentially affected by an entry in the list. In short the Court's aim is for an objective contextual interpretation of the listing as a whole

…

39. In my judgment, the City of Edinburgh case decided that an entry in the list should be clear and precise, but that it is not sensible to be too strict in interpreting the list, such as by insisting on literal accuracy of details of dates or description. What really matters is whether, on a sensible contextual reading of the whole entry, its effect is clear and precise enough to identify the listed building.

40. In my judgment, sensible allowances can and should be made, consistently with the terms of the legislation and with established canons of construction, for the fact that in the real world more than one name may be commonly used to describe a building, a road or a place. Road names in rural areas sometimes change without precise or clear indications to the person trying to find the way along them. Names of buildings and places can undergo change over time. …"

28. Mummery LJ went on to discuss, as part of the context, the relevant local history in the case before the court and noted at paragraph 44 that the legislative regime requires compilation of an official list of buildings, not an official list of names.'

[7] The Ancient Monuments and Archaeological Areas Act 1979, section 1 is entitled 'Schedule of monuments' and reads (in relation to England; section 1 is different for Wales and Scotland):

'(1) The Secretary of State shall compile and maintain for the purposes of this Act (in such form as he thinks fit) a schedule of monuments (referred to below in this Act as “the Schedule” ).

(2) The Secretary of State shall on first compiling the Schedule include therein-

(a) any monument included in the list last published before the commencement of this Act under section 12 of the Ancient Monuments Consolidation and Amendment Act 1913; and

(b) any monument in respect of which the Secretary of State has before the commencement of this Act served notice on any person in accordance with section 6(1) of the Ancient Monuments Act 1931 of his intention to include it in a list to be published under section 12.

(3) Subject to subsection (4) below, the Secretary of State may on first compiling the Schedule or at any time thereafter include therein any monument which appears to him to be of national importance. The Secretary of State shall consult the Historic Buildings and Monuments Commission for England (in this Act referred to as “the Commission”) before he includes in the Schedule a monument situated in England.

(4) The power of the Secretary of State under subsection (3) above to include any monument in the Schedule does not apply to any structure which is occupied as a dwelling house by any person other than a person employed as the caretaker thereof or his family.

(5) The Secretary of State may -

(a) exclude any monument from the Schedule; or

(b) amend the entry in the Schedule relating to any monument (whether by excluding anything previously included as part of the monument or adding anything not previously so included, or otherwise).

In the case of a monument situated in England, the Secretary of State shall consult with the Commission before he makes an exclusion or amendment.

(6) As soon as may be after -

(a) including any monument in the Schedule under subsection (3) above;

(b) amending the entry in the Schedule relating to any monument; or

(c) excluding any monument from the Schedule;

the Secretary of State shall [(subject to subsection (6A) below)] 3 inform the owner and (if the owner is not the occupier) the occupier of the monument, and any local authority in whose area the monument is situated, of the action taken and, in a case falling within paragraph (a) or (b) above, shall also send to him or them a copy of the entry or (as the case may be) of the amended entry in the Schedule relating to that monument.

(6A) Subsection (6) above shall not apply as regards a monument situated in England but, as soon as may be after acting as mentioned in paragraph (a), (b) or (c) of that subsection as regards such a monument, the Secretary of State shall inform the Commission of the action taken and, in a case falling within paragraph (a) or (b) of that subsection, shall also send to the Commission a copy of the entry or (as the case may be) of the amended entry in the Schedule relating to that monument.

(7) Subject to subsection (7A) below, the Secretary of State shall from time to time publish a list of all the monuments which are for the time being included in the Schedule, whether as a single list or in sections containing the monuments situated in particular areas; but in the case of a list published in sections, all sections of the list need not be published simultaneously.

(7A) Subsection (7) above shall not apply as regards monuments situated in England, but the Secretary of State shall from time to time supply the Commission with a list of all the monuments which are so situated and are for the time being included in the Schedule, whether as a single list or in sections containing the monuments situated in particular areas; but in the case of a list supplied in sections, all sections of the list need not be supplied simultaneously.

(8) The Secretary of State may from time to time publish amendments of any list published under subsection (7) above, and any such list (as amended) shall be evidence of the inclusion in the Schedule for the time being -

(a) of the monuments listed; and

(b) of any matters purporting to be reproduced in the list from the entries in the Schedule relating to the monuments listed.

(8A) The Secretary of State shall from time to time supply the Commission with amendments of any list supplied under subsection (7A) above.

(9) An entry in the Schedule recording the inclusion therein of a monument situated in England and Wales shall be a local land charge.

(10) It shall be competent to record in the Register of Sasines -

(a) a certified copy of the entry or (as the case may be) the amended entry in the Schedule relating to any monument in Scotland which is heritable; and

(b) where any such monument is excluded from the Schedule and a certified copy of the entry in the Schedule relating to it has previously been so recorded under paragraph (a) above, a certificate issued by or on behalf of the Secretary of State stating that it has been so excluded.

(11) In this Act “scheduled monument” means any monument which is for the time being included in the Schedule.'

Section 1A is entitled 'Commission's functions as to informing the publishing' and reads:

'(1) As soon as may be after the Commission-

(a) have been informed as mentioned in section 1(6A) of this Act, and

(b) in a case falling within section 1(6)(a) or (b) of this Act, have received a copy of the entry or (as the case may be) of the amended entry from the Secretary of State,

the Commission shall inform the owner and (if the owner is not the occupier) the occupier of the monument, and any local authority in whose area the monument is situated, of the inclusion, amendment or exclusion and, in a case falling within section 1(6)(a) or (b), shall also send to him or them a copy of the entry or (as the case may be) of the amended entry in the Schedule relating to that monument.

(2) As soon as may be after the Commission receive a list or a section in pursuance of section 1(7A) of this Act, they shall publish the list or section (as the case may be).

(3) The Commission shall from time to time publish amendments of any list published under subsection (2) above, and any such list (as amended) shall be evidence of the inclusion in the Schedule for the time being -

(a) of the monuments listed; and

(b) of any matters purporting to be reproduced in the list from the entries in the Schedule relating to monuments listed.'

[8] Section 61 of the Ancient Monuments and Archaeological Areas Act 1979 is entitled 'Interpretation', and contains, in subsection 1:

'“owner” , in relation to any land in England and Wales means (except for the purposes of paragraph 2(1) of Schedule 1 to this Act and any regulations made for the purposes of that paragraph) a person, other than a mortgagee not in possession, who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or where the land is not let at a rack rent, would be so entitled if it were so let;'

[9] The author has not come across a provision which renders this impossible.

[10] By way of comparison: with occupied hereditaments there is small business rates relief for hereditaments with a rateable value of £15,000 or less. The quantum of small business rates relief is on a sliding scale down to £12,000. For hereditaments with a rateable value of £12,000 or less, there is a reduction in quantum of rates to pay, down to, effectively, zero. See a different article by the same author, for more information on small business rates relief on occupied hereditaments, available here.

For whatever reason, Parliament has set the rateable value threshold for relief/exemption, for unoccupied business rates, much lower than for occupied business rates. So a hereditament with a rateable value of, say, £5,000 might: (1) if rateably occupied, qualify for, effectively, 100% occupied small business rates relief (depending also on other factors); whereas (2) if rateably unoccupied, it would not qualify for (100%) exemption under 4(g) of the 2008 Regulations (because £5,000 is above £2,900). 

[11] For more information on these, see a different article by the same author, available here.

[12] Section 112 of the Insolvency Act 1986 is entitled 'Reference of questions to court' and reads:

'(1) The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up of a company, or to exercise, as respects the enforcing of calls or any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court.

(2) The court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit, or may make such other order on the application as it thinks just.

(3) A copy of an order made by virtue of this section staying the proceedings in the winding up shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the registrar of companies, who shall enter it in his records relating to the company.'

Section 145 of the Insolvency Act 1986 is entitled 'Vesting of company property in liquidator' and reads:

'(1) When a company is being wound up by the court, the court may on the application of the liquidator by order direct that all or any part of the property of whatsoever description belonging to the company or held by trustees on its behalf shall vest in the liquidator by his official name; and thereupon the property to which the order relates vests accordingly.

(2) The liquidator may, after giving such indemnity (if any) as the court may direct, bring or defend in his official name any action or other legal proceeding which relates to that property or which it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.'