A recent judgement in the High Court of Appeal may have implications for boaters living on a boat at a fixed spot on the canal system whether at an official mooring or not and irrespective of whether the mooring is classed as residential. A précis of the circumstances and the judgement is explained below.

This case began with an article published in the North Devon Journal on 25th February 2010. 

“A family living on a houseboat say they are sick of being branded a “problem” by local authorities. Randy Northrop, 54, lives with his wife Susan and 12 year old son, Benjamin, on an old tug boat called Cannis which is moored off Chivenor Business Park. Randy and his family arrived in North Devon in October 2008

Randy said: “A lot of people don’t realise how we live here.  We don’t get grief from anyone and most are quite envious.  I am upset that councils and groups such as the TAW and Torridge Estuary Forum label us as a problem – they don’t know us so how could they make that judgment?  We may live differently to those in concrete boxes but we’re not bad people.  We work, we pay taxes – the boating community are no different to the rest of the population. We may not pay council tax but neither do we receive services such as electricity, water or having our bins emptied.  We don’t live on a boat in a deliberate attempt to screw the council over – we just enjoy it.”

The article excited a flurry of email comment with views being expressed, temperately and intemperately, for and against Randy and his family.  One correspondent suggested sending the local authority “some voluntary council tax and make them acknowledge you have your right to live as you choose.”  Randy Northrop accepted the advice.  He sent an email to the North Devon District Council asking how he could go about paying some contribution in lieu of council tax saying that he did that “as a gesture of good citizenship”.  That was a big mistake because, as he explained with bemusement, the predictable result was that: 

“Anyway, in about 2 weeks, we got a reply … no – statement – that we were now banded Band “A”, fait accompli!  I couldn’t actually believe it.  I sent another email, tactfully explaining I did not mean for us to be banded; indeed we should not have been banded; as we were a BOAT; not “property”.  No response.  Eventually I was contacted by the valuation agency in Exeter; and after an email; and a long phone call; I at least “got the picture”; the Council had simply asked the valuation agency to band me; as “proof” of being liable; the Council said we were “there too long”; and sent a copy of our newspaper article as further “proof”?  I guess it was up to me to “prove” my innocence.” 

Thus began the sad tale that has led Randy Northrop (Randy) to be the appellant after he had previously succeeded in appealing the original valuation agency judgement the case was appealed to the High Court.

At the hearing Randy  represented himself and by all accounts made  a good job of it

Randy had taken on board (if I may be forgiven the pun) the Council Tax Manual – Practice Note 7: Application of Council Tax to Caravan Pitches and Moorings, which set out to explain the law and circumstances which require the mooring for a boat to be banded for council tax purposes.  There is no definition of “boat” for the purposes of the legislation.  He would have learnt that in order to be subject to council tax, property must be a dwelling as defined in s. 3(2) of the Local Government Finance Act 1992 namely:

“3(2)  Any property which –

(a) by virtue of the definition of hereditament in s. 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force; and

(b) is not for the time being shown or required to be shown in the local or central non-domestic rating list in force at that time; and

(c) is not for the time being exempt from local non-domestic rating for the purposes of Part III of the Local Government and Finance Act 1988.”

Thus to be treated as a dwelling and assigned to a council tax band, the mooring must both be a hereditament and be domestic property.

To be domestic property s. 66 of the Local Government and Finance Act 1988 applies, namely Property is domestic if  (a) it is used wholly for the purposes of living accommodation, and specifically

(4)  Sub-section (1) above does not apply in the case of a mooring occupied by a boat, but if in such a case the boat is the sole or main residence of an individual, the mooring and the boat, together with any garden, yard, outhouse or other appurtenance belonging to or enjoyed with them are domestic property.”

S. 66 was however amended by the Rating (Caravan and Boats) Act 1996 as follows: (4)  Sub-section (1) above does not apply in the case of a mooring occupied by a boat, but if in such a case the boat is the sole or main residence of an individual, the mooring and the boat, together with any garden, yard, outhouse or other appurtenance belonging to or enjoyed with them are domestic property.”

Then he would have to grapple with the meaning of “hereditament”.  He would be directed to s. 64 of the Local Government Finance Act 1988 which would inform him that:

“(1)  An hereditament is anything which, by virtue of the definition of hereditament in s. 115(1) of the 1967 Act, would have been an hereditament for the purposes of that Act had this Act not been passed.”

That is astonishingly informative.  Ss. (4) of s. 66 would tell Randy that:

“(4)  A hereditament is a relevant hereditament if it consists of property of any of the following descriptions –

(a) lands …”

S. 65 defines owners and occupiers –

“(1)  The owner of a hereditament or land is the person entitled to possession of it.

(2)  Whether a hereditament or land is occupied, and who is the occupier, shall be determined by a reference to the rules which would have applied for the purposes of the 1967 Act had this Act not been passed (ignoring any express statutory rules such as those in sections 24 and 46 A of that Act).”

 

 

Really?!! Thats clear then. One of the judges commented If prizes are to be offered for legislative gobbledegook then the foregoing would surely qualify. Having undertaken that trawl through these various statutes I confess to my shame I am no wiser nor would any ordinary citizen be.

 

The appeal boiled down to the following : “would a pitch for a caravan or mooring for a boat fall to be shown as a separate item under the old rating law?”

A formal pitch or formal mooring constructed or laid out perhaps with the provision for service will constitute a hereditment.  This should be distinguished from a temporary wayfarer’s pitch, e.g. roadside or a mooring on a mud flat or a natural river bank which would have to be occupied for a sufficient length of time for it to constitute a hereditament. 

Wayfaring sites – establishing a hereditament

In the case of a piece of undeveloped natural river bank or unestablished pitch, that a boat or a caravan may use, the question of establishing a hereditament may be relevant.  The examples of case law below concerning transience may be relevant precedents to follow in such cases, to determine whether the occupation of the land is merely temporary or transient.  A gypsy caravan on a byway or a roadside verge may well have to be in place for say 12 months to establish the pitch.  Similarly, a house boat anchored to a river bank or resting on a mud flat.  These situations should not be confused with recognised pitches or moorings, which are already hereditaments.

Summary of legislation policy

The policy that the legislation is intended to achieve can be summarised as follows.  Although this specifically refers to boats and moorings the same principles apply to caravans and their pitches. 

If a boat which is someone’s sole or main residence is moored “permanently” at a mooring, then the mooring is domestic property, and both the mooring and the boat are subject to council tax.

Whether the value of the boat or caravan can be included with the pitch is a matter of fact and degree.  As a general rule, where a dwelling boat or caravan occupies a mooring or pitch for a substantial period of time – such duration would usually be for 12 months or more – it should be included in the band value, even if it moves away for brief periods of say 2-4 weeks, provided it then returns to its original mooring or pitch.  The question to be asked is whether the occupation can be characterised as that of a ‘settler’ or ‘wayfarer’.  If the latter, then only the mooring or pitch should valued.”

Randy’s written submissions made these points.  First he argued that his registered sea-going vessel was a boat not a houseboat.  Secondly this was clearly not a permanent or residential mooring because it lacked sufficient permanence to be enjoyed with the land.  Thirdly he was a wayfarer, not a settler.  Fourthly, “our intentions are to leave this ‘mooring’ SOON”.  He also made the point that at the Bristol marina where he formerly lived there was a time when every “live-aboard” was listed but the listings were then deleted. 

He further pointed out that the Valuation Tribunal previously found, having regard to the nature of the vessel and the overall circumstances of the mooring arrangements, that no rateable hereditament has been established and that neither the mooring nor the MY Cannis should be entered as a dwelling on the council valuation list

In Summary

The appeal judges all concluded that the appeal should succeed and council tax was indeed payable. It was  held that the boat having remained in a fixed position for a little more than two years, that was a length of occupation which was not too transient.  In the context of the case the mooring arrangements were not a relevant consideration.  The vessel was used as a dwellingthroughout the period of that mooring and was never used as a boat during that period. 

In the opinion of NABO this is a poor precedent in that although it has decided that ‘permanence’ such as 12 months is a factor and ,although not the only one, could be overriding every case still needs to be considered on its merits. The judgement does however give some substantial support to any council that will seek to secure a council tax payment from a boater who is resident at one place for a substantial period of time such that a degree of permanence can be claimed regardless of his mooring arrangements.

This is obviously a précis the full details of the case can be read at

http://www.bailii.org/ew/cases/EWCA/Civ/2013/362.html

 

Another approach has been that taken by CRT owned British Waterways Marinas Limited (BWML) who have obtained full planning approval for a number of residential berths at across 8 of their marinas (or units as they describe them) and have outsting applications for a further 4.

BWML has been active in discussions with Valuation Officers and 2 options have emerged :

1.       Direct charges issued to customers by the local authority at possibility Band A.

2.       A composite charge to the marina business applied to its business rates.

The application of a composite charge of say £2000 over 20 residential berths would give a not unreasonable charge for those seeking this level of security compared with a Band A charge.

BWML are said to be the only marina company pushing for residential planning permission in their marinas. CRT have in the past been thought to be against the development of residential moorings in private marinas.

Source for the BWML information article in “Narrowboat World” by Derek Newton MD BWML September 2012

                        

Mark Tizard April 2013