ATM Court of Appeal Judgement could be challenged by VOA

Ratepayer celebrations may have been premature as the Valuation Office Agency (VOA) seeks leave from the Supreme Court to appeal the Court of Appeal judgement in Cardtronics & Others v Sykes & Others (VO) [2018] EWCA Civ 2472.

In November the Court of Appeal ruled that ATMs located both inside and outside of stores should not be entered as separate assessments in the rating list. This important decision examined the points to consider when determining when a property should be a separate assessment. But the implications of the judgement go far beyond ATMs and raise some potentially controversial arguments.

To recap this long running saga, the Valuation Office Agency took action in 2013 to separately assess ATMs installed in shops and forecourts, and new rates bills were sent out to ratepayers in 2014, backdated to April 2010.  Ratepayers launched a legal challenge which was heard last month and was loudly welcomed by many that currently have ATMs on their premises.

The Court of Appeal judgement set out that where the host property being considered has given another person possession of part of the property, the host remains rateable in respect of the whole unless the other person has exclusive possession. The court described that the purpose of each occupation is an important consideration in deciding whether possession is exclusive or not. The judgement went on to set out that the critical question is whether the host maintains “general control” over the occupied part or not. But this is very different to “absolute control” which the court said is not necessary.

So now some mischief… what about a retail kiosk in the foyer of a supermarket occupied by a cobbler? What about those retailers and ATMs at motorway services? What about the Costa Coffee in your local hospital or the café in your local museum? If the host maintains general control over the area in question and let’s say has a common interest in the customers because the third party pays a turnover rent should a separate assessment apply? All the various “shades of grey” present the opportunity for argument about what should or should not be a separate assessment with significant financial consequences. No wonder the VOA wishes to appeal…

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