High Court ruling sets new precedent on Empty Property Rates

1 August 2018

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A recent High Court ruling on empty property rates liability will come as welcome news to landlords and owners seeking to mitigate their tax burden. The decision in the case: Principled Offsite Logistics Ltd (POLL) v Trafford Council (2018), ruled that the storage model employed by POLL in order to mitigate rating liability for clients is sufficient to constitute beneficial occupation.

Empty property business rates are incurred by landlords/owners of vacant commercial property after an initial three/six month rate free void period.

POLL enters into leases with landlords of vacant, commercial properties.  Goods are stored in the property for a minimum of six weeks, which triggers empty rates relief of three or six months for the landlord on termination of the lease.  POLL then charges a fee depending on the level of rates saved by the landlord.

The Hon Mr Justice Kerr said in this decision “The main business of the claimant (POLL) is occupying premises for reward on behalf of landlord commercial property owners, to the exclusion of the owner landlord and for the avowed purpose of minimising the landlord’s liability to pay national non-domestic rates (NNDR)”.

Trafford Council had argued that as the sole purpose of occupation was rates mitigation, it could not be considered beneficial for real business purposes, but the Court deemed this irrelevant. It ruled that in the basic English sense of the word, the purpose of occupation was to ‘plant the occupiers flag; to populate the premises to whatever extent is required to occupy it in law and fact’. Furthermore, it said that even if the purpose was rates avoidance, ‘the morality of that is neither here nor there’ and there is ‘no concept within the meaning of the word requiring a purpose or motive beyond that of the occupation itself’.

Jane Shankland, Business Rates Director at Cooke & Arkwright said, “I recently attended the Institute of Revenues, Rating and Valuation (IRRV) Wales Conference where this case was discussed. The Hon Mr Justice Kerr in his decision reviewed the well-known MAKRO decision and a raft of older authorities, in order to determine whether storage for the purposes of rates mitigation could establish rateable occupation or whether there had to be an independent business purpose.

“It is an important decision determining that occupation with the clear purpose of reducing rate liability is acceptable.”

The Leekes Retail and Leisure Group have substantial property assets within the group and have engaged Andrew West to appeal against rating assessments on these properties since 2010. We have consistently been impressed by Andrew's knowledge of the property market and his negotiating skills have been exceptional. Given Andrew's outstanding performance, we would not hesitate to recommend Andrew to any business large or small seeking to appeal their rates liabilities.

Mike Fowler, Group Finance Director, Leekes Group