Part 2: Valuation Tribunals - Wales
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
The CCA procedures to follow for Wales 2023 may be found in RM Section 6: Part 10 Rating Manual: section 6 - CCA and Proposals
This section sets out how the VT runs an appeal from that hearing.
1.1 The Regulations Governing Valuation Tribunal Procedure
The procedural aspects relating to rating appeals are various.
For R2010 and R2017 the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758) apply. For Non-Domestic Completion Notices, in addition to reg 19, Schedule 4A paragraph 4 of the LGFA 1988 applies and for Non-Domestic Penalty Notices, in addition to reg 20, Schedule 9 paragraph 5A of the LGFA 1988 applies.
Whenever reference to a specific regulation number is made without further qualification in this section of the Rating Manual, it refers to:
See also VTW – Standard directions and Best Practice Protocols 02C__Standard_Directions_Rating2023_onwards.pdf (valuationtribunal.wales) & Rules and Protocols (valuationtribunal.wales)
1.2 The Establishment of Valuation Tribunals
Valuation Tribunals are established under Schedule 11 to the Local Government Finance Act 1988 (LGFA 88).
The VT has published standard directions alongside best practice protocols (VTW BPP) that took effect from 1/4/23. The standard direction is referred to as VTW SD 2023.
1.3 Overriding Objective
The over-riding objective of the Tribunal is to deal with cases fairly and justly and act in accordance with the Local Government Finance Act 1988, Schedule 11, Part 2 Paragraph 1 and The Non-Domestic Rating (Alterations of Lists and Appeals) (Wales) Regulations 2023. It includes:
a) dealing with cases proportionately re complexity, resources and cost b) avoiding unnecessary formality and being flexible at hearings c) dealing with parties fairly d) use of expertise of the VT effectively e) avoiding delays
The parties are required to conduct cases to assist the overriding objective, comply with directions and inform the VT of issues that may result in proceedings being struck out, an appeal being dismissed, or a party being barred from further participation in the proceedings.
1.4 The Role of the Valuation Tribunal
The role of a valuation tribunal is to list, hear and determine appeals concerning:
a) appeals against a Challenge Decision Notice, appeals against CCA Penalty Notices, and Form of Return penalty notices
b) valuation for Council Tax including appeals questioning the validity of a proposal to alter a band in the valuation list, proposals to alter the actual band in the list and completion notices for new or substantially altered properties
c) valuations for Land Drainage Rates
d) liability for Council Tax, general liability issues and against the imposition of penalties
e) appeals against completion notices regarding the completion date under Schedule 4A LGFA 1988
1.5 NDR appeals
In the non-domestic rating context, appeals to the valuation tribunal can arise in a number of ways:
1) Wales (2023 on) The Proposer (or substitute proposer) submits an appeal against the decision notice to the VT within 4 months of the notice. If a decision notice is not issued within the prescribed time limits (18 months or at a later date agreed between the parties) the Proposer may make an appeal to the VT within 4 months of the expiry of the time limit for issuing the decision notice.
2) An appeal against a penalty notice served by the valuation officer following a failure to comply with a statutory request to supply information or for providing false information during the Check/Challenge stage is required to be lodged with the VTW within 28 days of issue of the notice.
For NDR valuation appeals there are two separate procedures, (see Standard Directions and VTW Best Practice Protocols), VTW SD 2023 for 2023 (CCA) appeals and VTW BPP, which applies to rating lists prior to 2023 in Wales. It is therefore important to ensure the correct procedures are followed for the particular rating list being dealt with.
For Wales 2017 list appeals - please see RM section 6, part 5: Procedures 2010 Rating List (England), 2017 Rating List (Wales) for further information.
2.1 Composition of the Valuation Tribunal
The Valuation Tribunal Wales (VTW) is an independent and impartial body, and its role is to determine appeals on the basis of the information put before it.
The Valuation Tribunal Wales is the body established by Valuation Tribunal for Wales Regulations 2010 (as amended), which contains the rules regarding membership:
- Individual members are appointed for a term of up to 5 years (but further terms are possible)
- No Upper age limit (in Wales)
- Members do not need to hold any professional qualifications
- Members are eligible for travel and subsistence payments and allowance
- A number of people will also be elected to chair tribunal sittings
- Three members drawn from the wider tribunal usually constitute the panel at a VT hearing
2.2 The Clerk to the Valuation Tribunal
Judicial decision-making rests exclusively with the members of the tribunal, but the system depends critically on their being guided and taking appropriate advice from the clerk at the hearing.
A clerk is assigned to each tribunal and is responsible for
- advising the members of the law and technical matters, both during the hearing and when they are reaching their decision
- the drafting and distribution of the tribunal’s decisions
- any other administrative tasks which may arise
- the clerk should only advise the members on the law and technical issues when they are reaching their decisions and should not seek to influence how the members interpret the evidence put before them
During the hearing the clerk is responsible for providing advice to the tribunal on:
- questions of law
- questions of mixed law and fact
- matters of practice and procedure
- any relevant decisions of the superior courts or tribunals
- the decision-making structure to be applied in any given appeal
The clerk:
- will make notes of the evidence and submissions at the hearing
- may ask questions of witnesses and the parties to clarify points
- may assist unrepresented parties when presenting their case without becoming an advocate for them
If during the tribunal deliberations the clerk gives substantive advice that has not been mentioned at the hearing, the hearing should be reconvened so that the parties may provide a response.
The clerk will record the valuation tribunal’s decision and reasoning and draft a decision for approval.
The clerk has a duty to give appropriate advice and the tribunal must give due consideration to this advice.
The clerk has a duty to ensure that every case is concluded fairly and to further the overriding objective of dealing with cases justly.
2.3 Notification of the hearing
The Clerk to the tribunal is under a duty to provide at least 28 days’ notice to all relevant parties of the date, time and place appointed for the hearing (Regulation 40).
Where two or more appeals relating to the same property are outstanding, the appeals will be dealt with in the order in which the potential alterations would take effect (Regulation 35(2)).
This only applies to appeals within a particular rating list.
It is possible for appeals on a later list to be heard before those on an earlier list, eg a 2017 appeal before a 2010 appeal.
Notice of tribunal hearings must also be displayed at the VT office, VT website, outside an office of the relevant authority or in another place within that authority’s area, (reg 40(2)). This notice must include the address of the place where a list of the appeals to be heard can be viewed, usually the VT offices (reg 40(3)) and details of appeals listed for hearing are available on the VT’s website.
2.4 Appeal served out of time
If the appeal is served out of time, then an extension must be requested giving reasons for late submission (reg 26 (4)).
A notice of appeal submitted later than the relevant time limit must be accompanied by reasons for its late submission.
The President will consider the reasons supplied and determine whether to accept the appeal outside the prescribed time limit in accordance with regulation 25(3), provided the notice of appeal meets the requirements in all other respects.
The President’s decision regarding the acceptance or otherwise of a late appeal is final and there is no right of appeal against their decision.
2.5 Notification of Appeal
On receipt of the appeal the VTW must send a copy of the appeal notice to the VO and any parties to the appeal (Reg 26(5))
2.5.1 Appeal Process
The appeal process is now under the remit of the VT, however after submission by the Appellant the VO has various actions that need to be taken under the regulations before a hearing can commence.
2.5.2 Without Prejudice Offers
Judicial hearings should be seen as a last resort and, indeed, the Courts are keen to encourage parties to talk and resolve their differences without a hearing. The Without Prejudice Basis encourages parties to engage and attempt to settle their disputes out of court.
Discussions with the underlying objective of reaching a settlement can be facilitated freely if parties can speak openly, secure in the knowledge that what they have said, and in particular, any admissions which they might have made to try and settle the matter, may not be used against them should discussions fail.
In Rush & Tompkins Ltd. v. Greater London Council 1988 the House of Lords considered the purpose of the “without prejudice” rule for negotiations was to encourage litigants to settle their disputes/differences out of court. It applied to all negotiations genuinely aimed at settlement, whether oral or in writing, and prevented them being given in evidence. The use of the words “without prejudice” was held not to be essential where it was clear from the surrounding circumstances the parties were aiming to settle a dispute.
Key aspects of the Without Prejudice Basis
- It applies to oral and written communication.
- There must be a genuine attempt to settle a dispute. Simply setting out your case or critiquing the other side’s case is not sufficient.
- There must be a genuine dispute, not simply a number of corresponding differences and grievances.
- There does not need to be threat of impending litigation.
- The label ‘Without Prejudice’ can be useful but it is not determinative. You must consider the substance and assess objectively.
When considering and discussing a challenge case or preparing a case for VT, caseworkers need to remember that discussions with ratepayers or their agents are assumed to be on a without prejudice basis as they are aimed at settling a dispute. This is whether or not any correspondence has been headed “without prejudice”.
Neither party should refer to the content of discussions held prior to the hearing. This includes correspondence relating to provisionally agreed figures where parties indicate they no longer consider agreement should be reached at those figures. It is open, and proper, for ratepayers and agents to change their minds on reflection, or with the benefit of further evidence, and not be embarrassed at a hearing by revelation of their provisional agreement to figures now considered incorrect.
VOs should not make offers that they are not prepared to maintain at valuation tribunal. Nonetheless, such offers are without prejudice and exceptionally may be withdrawn where the VO considers the original offer was wrong, or when new evidence comes to light.
The presumption of without prejudice does not mean that anything said cannot be used in evidence. It has limitations:
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Parties can waive the privilege providing it does not compromise the other party’s privilege. So, the contents of a without prejudice letter by Party A can be divulged at a hearing by Party A providing the contents do not refer to an admission by Party B which would be regarded as “without prejudice” eg, an original offer by Party B in a letter by Party A making a counter offer.
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Strictly only matters of admission are protected. “Without prejudice” communications can be referred to for other purposes eg in explaining a delay which on the face of it appears unreasonable to a VT or the LT. So, it may be permissible to explain that the VO had understood an agreement had been reached though the agent has now re-considered and this is the reason for inaction on the VOs part but without mentioning the actual figure previously agreed.
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The privilege is not allowed to create injustice or be abused.
Cases where VOs consider parties are not complying with the without prejudice principles should be escalated through your Regional Valuation Leads (Tech Leads).
2.5.3 Decisions without a hearing – written representations (reg 37)
If the appellant wants the appeal to be decided without a hearing, on the papers alone, they must request this, and all parties must agree to the procedure in writing.
The VO would only object where there was good reason to do so.
If all parties agree, they will have 28 days following the notice of agreement to submit their reasons or further reasons for the disagreement giving rise to the appeal.
The clerk will serve a copy of any information received on every other party and each party, within 28 days, will be given the opportunity to respond to the other party’s(ies’) statement.
After a further 28 days the clerk will submit all the information to a valuation tribunal.
The valuation tribunal may then:
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consider the documentation and issue a decision
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require any party to supply further information or
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order that the appeal proceeds to a hearing
An appellant may withdraw their appeal, in writing, at any time before the tribunal considers the written representations (reg 36(1)).
Generally written representations may only appropriate in very limited cases eg it may be possible where there may be a legal issue only to argue. For valuation matters, issues regarding evidence or complex law matters an oral hearing should be sought to enable the issues to be explored fully and for cross examination to take place.
Requests for litigation without hearings should be referred to the LSRP for consideration before agreeing to this type of hearing with the VTW.
2.5.4 Varying the VT directions
Applications may be made to the Tribunal for any of the directions regarding the appeal process to be varied, including extension of time limits.
There are no provisions in VTW SD 2023 in regard to case handling complex cases however cases that have the following features:
- lengthy or complex evidence
- national implications
- novel, important or contentious points of law or
- any other factor that makes it desirable to manage the case and issue specific directions
Should be considered on a case-by-case basis and early discussion with the appellant, and VTW on case handling is encouraged.
See Section 7, Part 2b of the rating manual for VTW procedures at the actual hearing.
The Tribunal will decide the appeal on the basis of all the documentation submitted with the appeal form and any new evidence that the VT has permitted.
If a case is to be heard in the appellant’s absence, then the party must notify the VT in writing two weeks prior to the hearing. If no notification is received by the VT and the appellant fails to appear then the appeal may be dismissed (reg 43(4) & SD11) or struck out (reg 47 (1) & SD11).
Failure to comply with the Standard directions may bar any party from taking any further part in the proceedings but the appeal will proceed based on the documents already submitted.
An act which is required to be completed under the standard directions by a particular day must be undertaken by 5pm on that day.
5.1 Postponements
Postponements usually occur prior to the actual hearing.
A party may apply in writing, having secured support from all other parties, for a postponement in advance of the hearing date, giving reasons for the request and copies sent to all parties as well as the VT.
The VT will consider the following matters when an application for postponement is received;
- the main reason for the request e.g., disagreement of facts, outstanding superior court decision etc.
- whether sufficient progress has been made by the party(ies) concerned
- whether any party will be disadvantaged by the deferral
- whether the appeal has been adjourned or postponed previously
- how much notice of the hearing date was given
- the timeliness of the request and
- the other party’s support for or reasoned objection to the request
Postponements will generally be granted where the VT considers the request is reasonable.
VT will advise the parties in writing of its decision, with reasons, provided there is time prior to the hearing (reg 40(4)).
The VT itself may postpone a hearing for administrative reasons if it is unable to hear the case on a given date.
5.2 Adjournments
Reg 43(9) gives the VT power to adjourn a hearing.
An adjournment is a judicial decision of the tribunal and is only applied for once the hearing has started, with the decision being made by the tribunal members.
The general assumption is that it is always in the interest of justice to proceed with a properly listed hearing unless it would be unjust to do so.
Parties should not presume that a tribunal will automatically grant an adjournment and should be prepared to proceed should they be asked to do so.
The tribunal will consider every case on its merits.
Where an appeal may be affected by the outcome of another case, pending a Tribunal of higher court decision, a party may apply to the VT with a full explanation requesting a stay of the case, until the decision of the other appeal case has been issued.
If the request is made by one party only and not jointly, the other party must be notified by the person making the request.
The VT may stay an appeal on its own initiative.
If there are a number of appeals with commonality, a case may be chosen to be a lead appeal and any other linked cases will be stayed behind the lead appeal until the decision on the lead case has been issued. If that decision is subsequently appealed, then, the stayed cases may be deferred longer.
During the stay, parties to a related appeal may apply in writing for:
- a direction that the decision does not apply to, and is not binding on, the parties to that particular related appeal or
- a further direction facilitating the disposal of the appeal
Any such application will specify the grounds on which the application is made and be served on the other party or parties who then have 14 days to make their representations.
Notes are taken by the clerk of the important issues in the case. The record of proceedings is produced in the form of a formal decision which is issued to the parties.
It is not permitted to use any electronic recording devices of any sort within the Tribunal hearing room whilst the proceedings are in session.
A valuation tribunal will be assisted by a professional clerk who can advise on practice, procedure and substantive issues of law.
The tribunal can only consider the evidence submitted in accordance with the Tribunal’s Directions when making a decision in a case unless additional evidence and / or argument has been allowed.
The strict rules of evidence do not apply to the Tribunal, and it is up to the tribunal to consider what is presented to it and give such weight to it as it considers appropriate.
Evidence is not given on oath and there is no power to administer one.
There is no power for the Tribunal to award costs.
Overview of the Hearing
The chairperson opens proceedings with introductions and explains to the parties that the tribunal has considered the evidence already submitted (if this is the case) and will be concentrating on the matters in dispute.
The clerk outlines the nature of the appeal. They may summarise the matters and issues that have been agreed and outline the matters in dispute for the focus of the hearing.
The appellant normally presents their case first followed by the respondent.
An unrepresented appellant may be assisted by the tribunal to formulate and clarify appropriate questions. However, the tribunal cannot act as the appellant’s advocate.
Any party may call witnesses to support their case and those witnesses may be cross examined.
Once all the evidence has been heard from both parties each will be invited to make final submissions, with the appellant having the final word.
Questions may be asked by either party of the other and the tribunal and clerk may also ask questions as appropriate.
Before the tribunal retires to come to a decision, the clerk may raise, in open session, any matter of law that they feel the tribunal should be aware of together with any advice that is felt appropriate. The parties may comment on what the clerk introduces.
The tribunal will then retire to make the decision.
DURING THE HEARING
The clerk is responsible for providing advice to the tribunal which it requires to discharge its functions, whether or not the tribunal has requested that advice, on:
*questions of law *questions of mixed law and fact *matters of practice and procedure *any relevant decisions of the superior courts and tribunals *the decision-making structure to be applied in any given appeal
The clerk will keep a personal note of the evidence and submissions of the parties at the hearing to assist in drafting the decision. No verbatim record of proceedings is made.
The clerk must not make findings of fact or law but may assist the tribunal by reminding it of the evidence and arguments from their notes.
The clerk may ask questions of witnesses and the parties in order to clarify the evidence and any issues in the appeal when invited to do so by the chairperson. They may seek clarification of an answer or point at the time.
The clerk is under a duty to assist unrepresented parties to present their case, without becoming an advocate for the party concerned.
CONCLUSION OF THE HEARING
At the conclusion of the hearing and before retiring, the chairperson will ask the clerk whether there is anything further they wish to say. If the clerk does and makes substantive points, it will be necessary to invite the parties to comment if they wish.
Normally the clerk will retire with the tribunal members, but they will not take part in the decision-making process.
It is of course the duty of the tribunal to make the final decision in the case. Any member of the tribunal may seek the clerk’s advice at any time.
If, in the course of discussions in the retiring room, the clerk gives substantive advice to the tribunal which has not been previously mentioned during the hearing, it will be necessary to reconvene the hearing for that advice to be tendered in the presence of the parties and for them to be given an opportunity to comment on it. If the parties have already left, it may be necessary to adjourn and re-list the case for a further hearing.
The chairperson ensures that the clerk is informed of the tribunal’s reasoning and its understanding and findings on the facts, so that the final written decision with reasons may be drafted. In addition, the clerk may assist the chairperson with the wording of any oral decision that is to be communicated.
The clerk must accompany the tribunal on any site visit.
DECISION
The clerk is responsible for recording the tribunal’s reasons and drafting the decision for approval or amendment by members of the tribunal.
The chairperson will authorise the final agreed version of the decision before it is sent to the parties.
The draft should accurately record the findings of fact and law made by the tribunal.
It is the duty of the tribunal to produce a decision that gives a clear explanation for its determination.
The clerk should make a clear and full note of any instance where the tribunal has refused to follow advice given; a copy of the note should be sent to the Chief Executive.
The general rule is that “all hearings must be held in public” (reg. 43 (3)) unless there is an exceptional reason to depart from that practice.
Exclusion of the public should be ordered only if alternative measures would not suffice.
The grounds for holding a hearing (or part of a hearing) in private – ‘a hearing in camera’ are as follows:
- confidential information;
- to protect the interest of any child or vulnerable person; or
- the tribunal considers it to be necessary in the interest of justice.
A request for a private hearing should be made to the tribunal in public, explaining why that request is being made.
The tribunal will (may retire to) consider the comment(s) of the other party(ies).
The decision will normally be made public even if the hearing has been held in private.
Any published report of a case may be redacted in light of any decision made under this procedure.
There are three stages to the procedure:
- the application for a review is considered
- if granted, the review will take place and a decision reached on whether to set aside the decision and
- if the decision is set aside, the appeal will be considered afresh
10.1 Grounds for Review
The only grounds on which a review is possible are those set out in reg 54(5):
(a) the decision was wrongly made as a result of clerical error
(b) a party did not appear and can show reasonable cause why they did not do so
(c) the decision is affected by a decision made by the High Court or the Upper Tribunal in respect of the hereditament which was the subject of the valuation tribunal’s decision or
(d) there has been some procedural irregularity in the proceedings
10.2 Applications
A written application must be made to the Tribunal office, within 28 days, of the date the written decision was issued. The application should state the following:
- cite the relevant grounds on which the application is made and
- provide a reasoned supporting statement for the application
An application may be dismissed if it is made outside the above time limit.
The application will be acknowledged by the VT.
10.3 Consideration of the application
Upon receipt of the application, the VT will ascertain if there is a valid ground for review.
Where there is no valid ground for review, the VT will write to the relevant party informing them of this.
Where it is certain that grounds for review exist, the VT will refer the application to the tribunal for consideration.
10.4 Review
In so far as is reasonably practicable, the tribunal appointed to review a decision will consist of the same members who made the initial decision.
The tribunal entertaining the application for review may decide:
- not to undertake a review as the relevant criteria have not been met
- to undertake a review and not set aside the decision
- to undertake a review and set aside the decision under the hand of the Presiding member
If the decision is not set aside, i.e. it stands unchanged, the parties will be informed of their right to appeal.
The VT will inform the party(ies) of the tribunal’s decision as soon as is reasonably practicable.
10.5 Where the decision is set aside
Any order made as a consequence of the original decision will be revoked and the parties informed.
The tribunal will order the case to be re-heard or re-determined by the same or a different tribunal.
An appeal that has been struck out or withdrawn may, within 28 days, be reinstated on application in writing by the appellant or any other party. Reference to striking out applies equally to the barring of any other party from participation in the proceedings and reinstatement is to be read as a reference to the lifting the bar on that party.
However, given that the Tribunal must have regard to the overriding objective of dealing with cases justly and swiftly, it will scrutinise any application closely and will only exercise its discretion to reinstate a case if the party can satisfy the Tribunal that there was a good reason for any failure, non-compliance with any Direction, practice statement, or order made by the tribunal.
The Tribunal is a judicial body and as such its work is of public interest and, in the spirit of open justice, decisions will be published on its website, as data protection legislation allows. There is an abundance of case law to illustrate the point and indeed the Court of Appeal in the recent case of L v Q Ltd [2019] EWCA Civ 1417 illustrates this principle that open justice is paramount. However, there are a very limited number of categories of case where it is not appropriate to publish any of the personal details of an appellant and in those types of cases a redacted version of the case may appear.
Records of decisions are to be retained for a period of six years from the date of issue or last amendment.
A party wishing their appeal to be excluded from the internet should make a request in writing to the VT.
The valuation tribunal may dispose of an appeal under Reg 38 without a hearing if a party informs the valuation tribunal in writing:
- that all the parties have come to an agreement
- what that agreement is and the decision the valuation tribunal is asked to make and
- that all the parties agree for the appeal to be disposed of without a hearing and
the clerk sends a notice to all parties to the proceedings stating:
- the valuation tribunal is minded to dispose of the appeal without a hearing
- the decision the valuation tribunal is minded to take and
- that any party can object to the appeal being disposed of without a hearing
A party sent notice under this regulation may within 28 days make a request to the clerk that the appeal be disposed of with a hearing.
The valuation tribunal must not dispose of an appeal without a hearing if:
- in the opinion of the clerk, the appeal raises issues of public importance that require that a hearing be held
- a period of 28 days has not elapsed from the date upon which the clerk has served notice to all parties of the intention to proceed without a hearing or
- a party to the appeal has requested a hearing
The functions of the valuation tribunal under this regulation may be performed on its behalf by the clerk.
13.1 Altering the list in line with the proposal request
The VO can alter the list in accordance with the proposal to which the appeal relates; in this case, the VO must notify the VTW, and the appeal is then treated as withdrawn on the date on which the notice is served on the VTW (Reg 36(3) SI 2023/350).
The VT Standard Directions and Best Practice Protocols apply to the following types of appeals:
- Non-domestic rating penalty notice appeals
- Non-domestic rating completion notice appeals
There is an expectation in all these types of appeals that the parties have fully exchanged evidence and argument before the appeal was lodged and therefore there is no disclosure process. However, evidence or argument which a party has not shared with the other party must be exchanged prior to the hearing.
See VTW Best Practice Protocol 1F
14.1 Appellant
The Tribunal presumes that you (or your representative) will attend the hearing in person or by video link unless you have requested the hearing to proceed in your absence and sent your written submission to the Tribunal at least fourteen days before the hearing.
The appeal may be struck out or dismissed if:
- you fail to attend and
- you have not requested the hearing to proceed in your absence and
- the tribunal is satisfied that the notice of hearing was sent to you
‘Struck out’ means that your case will not be considered and will be unsuccessful.
‘Dismissed’ means your appeal is turned down and you no longer have a case.
Unless your case is postponed, it is expected that you (or your representative) will attend the hearing to present your case.
Parties should notify the Tribunal at least two weeks before the hearing if they want the hearing to proceed in their absence.
Any written submissions must be received by the Tribunal at least 14 days before the hearing. They should be sent to the clerk at correspondence@valuationtribunal.wales and all other parties to the appeal.
14.2 Respondent
The Tribunal presumes that you will either attend (or be represented) via video link, unless you have indicated that you wish to appear in person or have requested the hearing to proceed in your absence and sent your written representations at least fourteen days before the hearing.
The appeal may be heard in your absence without your evidence and / or argument if:
- you or your representative fail to attend and
- you have not requested the hearing to proceed in your absence and
- the tribunal is satisfied that the notice of hearing was sent to you
14.3 Evidence and argument
There is an assumption that, due to the nature of these types of appeals, the parties will have fully exchanged evidence and argument before the hearing. Any such material provided for the first time at the hearing may not be allowed by the tribunal unless there is good reason for the late submission and the other party is not prejudiced.
Both parties must bring to the hearing five copies of their full case including all evidence and argument (for each tribunal member, the clerk and the other party, unless the other party has indicated in advance, they do not require a copy and in which case only four copies are needed).
Where parties intend to rely on well-known case law, they do not need to produce the full decision at the hearing but must provide the relevant extract they intend to rely on, together with an explanation as to how it assists their case.
The procedures to follow for Wales on pre 2023 list cases may be found in Rating Manual: Section 6: Part 5: Procedures 2010 Rating List (England), 2017 Rating List (Wales).
This section sets out how the VT runs the appeals from that hearing.
15.1 The Regulations Governing Valuation Tribunal Procedure
The procedural aspects relating to rating appeals are various.
Regulations 21-39 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005, WSI No.758 (W.63) continue to apply.
- Non-Domestic Completion Notice - Schedule 4A paragraph 4 of the LGFA 1988
- Non-Domestic Penalty Notice – Schedule 9 paragraph 5A of the LGFA 1988
- The Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758)
Whenever reference to a specific regulation number is made without further qualification in this section of the Rating Manual, it refers to:
IN WALES – the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 WSI No.758 (W.63)
15.2 The Establishment of Valuation Tribunals
A requirement of Schedule 11 to the Local Government Finance Act 1988 (LGFA 88) was for the then Secretary of State to make regulations for the establishment of valuation tribunals.
In Wales, the Valuation Tribunal for Wales Regulations 2010 (as amended) now apply.
The over-riding objective of the Tribunal is to deal with cases fairly and justly.
15.3 The Role of the Valuation Tribunal
In short, the role of a valuation tribunal is to list, hear and determine appeals concerning:
a) valuations for non-domestic rating purposes including the question of validity of a proposal to alter rating lists, appeals against entries in the rating lists, appeals against completion notices, appeals against Form of Return penalty notices
b) valuations for Council Tax including appeals questioning the validity of a proposal to alter a band in the valuation list, proposals to alter the actual band in the list and completion notices for new or substantially altered properties
c) valuations for Land Drainage Rates
d) liability for Council Tax, general liability issues and against the imposition of penalties
e) appeals against completion notices
15.4 NDR appeals
In the non-domestic rating context, appeals to the valuation tribunal can arise in a number of ways:
- The failure of a person making a proposal against a local rating list entry and the valuation officer to agree that the proposal is validly made (Wales only).
- The failure by the maker and the valuation officer to agree a resolution of a validly made proposal.
- The failure by the maker and the valuation officer to agree a resolution of a validly made proposal (Wales only).
- An appeal against a penalty notice served by the valuation officer following a failure to comply with a statutory request to supply information.
- The failure of person making a proposal against a central rating list entry and the Central Valuation Officer over the validity of that proposal.
For NDR valuation appeals there are two separate procedures, one for 2017 England (CCA) and 2023 Wales (CCA) appeals and one which applies to earlier Wales and England Rating Lists. It is therefore important to ensure the correct procedures are followed for the particular rating list being dealt with.
For England 2017 list (CCA) appeals – please see RM section 6, part 8E CCA Appeals for further information.
For Wales 2023 list (CCA) appeals – please see RM section 6, Part 10: 2023 Rating List and subsequent lists – Wales CCA.
16.1 Composition of the Valuation Tribunal
The Valuation Tribunal Wales (VTW) is an independent and impartial body, and its role is to determine appeals on the basis of the information put before it.
The Valuation Tribunal Wales is the body established by Valuation Tribunal for Wales Regulations 2010 (as amended), which contains the rules regarding membership:
- Individual members are appointed for a term of up to 5 years (but further terms are possible).
- No Upper age limit (in Wales).
- Members do not need to hold any professional qualifications.
- Members are eligible for travel and subsistence payments and allowances.
- A number of people will also be elected to chair tribunal sittings.
- Three members usually constitute the valuation tribunal at a hearing.
16.2 The Clerk to the Valuation Tribunal
Judicial decision-making rests exclusively with the members of the tribunal, but the system depends critically on their being guided and taking appropriate advice from the clerk at the hearing.
A clerk is assigned to each tribunal and is responsible for:
- advising the members of the law and technical matters, both during the hearing and when they are reaching their decision
- the drafting and distribution of the tribunal’s decisions
- any other administrative tasks which may arise
- the clerk should only advise the members on the law and technical issues when they are reaching their decisions and should not seek to influence how the members interpret the evidence put before them
During the hearing the clerk is responsible for providing advice to the tribunal on:
- questions of law
- questions of mixed law and fact
- matters of practice and procedure
- any relevant decisions of the superior courts or tribunals
- the decision-making structure to be applied in any given appeal
The clerk:
- will make notes of the evidence and submission at the hearing
- may ask questions of witnesses and the pasties to clarify points
- may assist unrepresented parties when presenting their case without becoming an advocate for them
If during the tribunal deliberations the clerk gives substantive advice that has not been mentioned at the hearing, the hearing should be reconvened so that the parties may provide a response.
The clerk will record the valuation tribunal’s decision and reasoning and draft a decision for approval.
Any substantive advice given to the tribunal by the clerk must be given in public and the parties, if present, must be given an opportunity by the presiding member to comment.
The clerk has a duty to give appropriate advice and the tribunal must give due consideration to this advice.
The clerk has a duty to ensure that every case is concluded fairly and to further the overriding objective of dealing with cases justly.
16.3 Appeals heard by the VT
The regulations provide that the VT may hear and determine the following non-domestic appeals:
- Invalid proposals (Regulation 8)
- Disagreement as to proposed alteration (Regulation 13)
- Completion Notice (Paragraph 4, Schedule 4A LGFA 1988)
- Penalties (Paragraph 5A, Schedule 9 LGFA 1988)
Within 3 months of receipt of a proposal, which is still outstanding, it is transmitted to the VT by the valuation officer and becomes an appeal. (reg 13)
In the case of invalid proposals which remain outstanding, these are transmitted to the VT after 4 weeks.
Appeals against Completion Notices and Penalty Notices are made direct to the VT.
16.4 Listing of appeals
All outstanding appeals will be placed in programmes with a target date. Those appeals which remain outstanding at the target date should be listed by the VT for hearing within 8 weeks, unless there is a pre-hearing review.
If there is more than one appeal on the property, they will be heard in the order in which the alterations take effect.
The VT is required to give the parties at least 28 days’ notice of the hearing.
17.1 Pre-hearing Review
This may apply to:
- large hereditaments involving specialist values and professional agents
- a breakdown in communication between parties re exchange of evidence and / or facts
- serious allegations of honesty of one of the parties
- a case which involves sensitive or confidential material
- repeated requests for adjournments / postponements
Other matters requiring specific directions. Parties can apply to the Tribunal for a pre-hearing review, or a chairperson may call one themself. Following the review, directions will be issued to the parties.
17.2 Postponements and adjournments
VTW Protocol 1D Postponement & Adjournment
- Regulations 27(4) and 30(10) of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758)
- Regulations 34(4) and 37(7) of the Valuation Tribunal for Wales Regulations 2010 (SI 2010/713)
“The hearing may be adjourned for such time, to such place and on such terms (if any) as the Tribunal sees fit…”
17.3 Postponement
If a party wishes to have a case postponed, they should seek the agreement of the other parties.
Reasoned requests for postponement should be made in writing (including by email) to the tribunal clerk, who will consider its justification including:
- whether there has been sufficient progress by the party(ies) concerned
- the timeliness of the request
- whether the appeal has been previously adjourned/postponed
- how much notice of the hearing date was given (including lead-in time for the sub-programme)
- the actual reason for the request (e.g., disagreement of facts, outstanding superior court decision etc.)
- the other party’s support or objection to the request and their reasons for it
It is presumed that the request will be granted if the request is reasonable.
If the request is refused, the party may apply at the hearing for an adjournment.
17.4 Adjournment
Examples of where an adjournment may be granted are shown below.
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A party had requested a postponement, and another party objected / did not support the request.
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The clerk had not granted a postponement and the tribunal will consider the request and objection and decide whether an adjournment will be granted.
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An appeal is part heard and an adjournment becomes necessary.
It cannot be assumed an adjournment will be granted at the hearing and the parties must be prepared to proceed.
17.5 Written representations
VTW Protocol 1E Written Representation
Reg 25 of the NDR (ALA) (Wales) Regulations 2005 provides for the disposal of appeals by written representations if all parties agree to the procedure in writing.
An appellant may withdraw their appeal at any time before the tribunal considers the written representations.
A party may make an application for the case to be heard on written representations. The clerk will then notify all the other parties and request their agreement to the procedure.
If all parties agree, they will have 4 weeks following the notice of agreement to submit their evidence to the clerk.
The clerk will serve a copy of any information received on every other party. Each party may then within four weeks of receiving such information serve on the clerk a further response to the other party’s(ties’) submission(s).
After 4 weeks the clerk submits all the information to a valuation tribunal.
The valuation tribunal may then:
- consider the documentation and issue a decision or
- require any party to supply further information
The tribunal may order that the appeal proceeds to a hearing.
17.6 Evidence and exchange
Legislation
(See also VTW Protocol 1F Evidence)
- Regulations 31 and 32 the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758)
The Tribunal is able to accept evidence either orally or in documentary form.
The Tribunal is not bound by any rule of law as to the admissibility of evidence.
There is no statutory requirement in Wales for evidence to be exchanged between the parties prior to the hearing. However, the VT would expect the parties to have discussed and exchanged evidence at least 2 weeks before the hearing day. There is one exception to this procedure regarding the use of Reg 31 (SI 2005/758) FOR information.
17.6.1 Without Prejudice Offer
Judicial hearings should be seen as a last resort and, indeed, the Courts are keen to encourage parties to talk and resolve their differences without a hearing. The Without Prejudice Basis encourages parties to engage and attempt to settle their disputes out of court.
Discussions with the underlying objective of reaching a settlement can be facilitated freely if parties can speak openly, secure in the knowledge that what they have said, and in particular, any admissions which they might have made to try and settle the matter, may not be used against them should discussions fail.
In Rush & Tompkins Ltd. v. Greater London Council 1988 the House of Lords considered the purpose of the “without prejudice” rule for negotiations was to encourage litigants to settle their disputes/differences out of court. It applied to all negotiations genuinely aimed at settlement, whether oral or in writing, and prevented them being given in evidence. The use of the words “without prejudice” was held not to be essential where it was clear from the surrounding circumstances the parties were aiming to settle a dispute.
Key aspects of the Without Prejudice Basis
- It applies to oral and written communication.
- There must be a genuine attempt to settle a dispute. Simply setting out your case or critiquing the other side’s case is not sufficient.
- There must be a genuine dispute, not simply a number of corresponding differences and grievances.
- There does not need to be threat of impending litigation.
- The label ‘Without Prejudice’ can be useful but it is not determinative. You must consider the substance and assess objectively.
When considering and discussing a challenge case or preparing a case for VT, caseworkers need to remember that discussions with ratepayers or their agents are assumed to be on a without prejudice basis as they are aimed at settling a dispute. This is whether or not any correspondence has been headed “without prejudice”.
Neither party should refer to the content of discussions held prior to the hearing. This includes correspondence relating to provisionally agreed figures where parties indicate they no longer consider agreement should be reached at those figures. It is open, and proper, for ratepayers and agents to change their minds on reflection, or with the benefit of further evidence, and not be embarrassed at a hearing by revelation of their provisional agreement to figures now considered incorrect.
VOs should not make offers that they are not prepared to maintain at valuation tribunal. Nonetheless, such offers are without prejudice and exceptionally may be withdrawn where the VO considers the original offer was wrong, or when new evidence comes to light.
The presumption of without prejudice does not mean that anything said cannot be used in evidence. It has limitations:
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Parties can waive the privilege providing it does not compromise the other party’s privilege. So, the contents of a without prejudice letter by Party A can be divulged at a hearing by Party A providing the contents do not refer to an admission by Party B which would be regarded as “without prejudice” e.g. an original offer by Party B in a letter by Party A making a counter offer.
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Strictly only matters of admission are protected. “Without prejudice” communications can be referred to for other purposes e.g., in explaining a delay which on the face of it appears unreasonable to a VT or the LT. So, it may be permissible to explain that the VO had understood an agreement had been reached though the agent has now re-considered and this is the reason for inaction on the VOs part but without mentioning the actual figure previously agreed.
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The privilege is not allowed to create injustice or be abused.
Cases where VOs consider parties are not complying with the without prejudice principles should be escalated through your Regional Valuation Leads (Tech Leads).
17.7 Reg 31 FOR Evidence
If the VO is using Reg 31 FOR evidence, then the VO must give every party 3 weeks’ notice of that evidence if he wishes to rely on it at the VT hearing.
The party then may serve a notice giving at least 24 hours’ notice to inspect the FOR documents and make a copy (NOT A PHOTOCOPY OR PHOTOGRAPH).
The party may also serve a counter notice requesting further FOR information.
If the VO does not comply with the counter notice request, the parties may request that the Tribunal directs the VO to comply.
See also RM section 6 Part 9B.
18.1 Hearing - Legislation
- Regulation 30 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758)
18.2 General
Parties proceeding to a hearing should prepare electronic document bundles where possible, and at least five working days before the hearing submit to the Clerk and all other parties.
Bundles should be printed and presented during the hearing if appearing in person - i.e., minimum of 5 - Tribunal (3), clerk (1), VO (1) and possibly other party(ies) (1+).
Burden of proof lies with the appellant.
18.3 At Hearing
Notes are taken by the clerk of the important issues in the case. The record of proceedings is produced in the form of a formal decision which is issued to the parties.
It is not permitted to use any electronic recording devices of any sort within the Tribunal hearing room whilst the proceedings are in session.
A valuation tribunal will be assisted by a professional clerk who can advise on practice, procedure and substantive issues of law.
The tribunal can only consider the evidence submitted by the parties to the appeal (including the VO).
The strict rules of evidence do not apply, and it is up to the valuation tribunal to consider what is presented to them and give such weight to it as they consider appropriate.
Evidence is not normally given on oath.
There is no power for the Tribunal to award costs.
18.4 Overview of the Hearing
The chairperson opens proceedings with introductions and explains to the parties that the tribunal will be concentrating on the matters in dispute.
The clerk outlines the nature of the appeal. They may summarise the matters and issues that have been agreed and outline the matters in dispute for the focus of the hearing.
The appellant normally presents their case first followed by the respondent.
Where the appeal is against a VO alteration the respondent (VO) will normally present their case first followed by the appellant.
An unrepresented appellant may be assisted by the tribunal to formulate and clarify appropriate questions. However, the tribunal cannot act as the appellant’s advocate.
Any party may call witnesses to support their case and those witnesses may be cross examined.
Once all the evidence has been heard from both parties each will be invited to make final submissions, with the appellant having the final word.
Questions may be asked by either party of the other and the tribunal and clerk may also ask questions as appropriate.
Before the tribunal retires to come to a decision, the clerk may raise, in open session, any matter of law that they feel the tribunal should be aware of together with any advice that is felt appropriate. The parties may comment on what the clerk introduces.
The tribunal will then retire to make the decision.
18.5 DURING THE HEARING
The clerk is responsible for providing advice to the tribunal which it requires to discharge its functions, whether or not the tribunal has requested that advice, on:
- questions of law
- questions of mixed law and fact
- matters of practice and procedure
- any relevant decisions of the superior courts and tribunals
- the decision-making structure to be applied in any given appeal
The clerk will keep a personal note of the evidence and submissions of the parties at the hearing to assist in drafting the decision. No verbatim record of proceedings is made.
The clerk must not make findings of fact or law but may assist the tribunal by reminding it of the evidence and arguments from their notes.
The clerk may ask questions of witnesses and the parties in order to clarify the evidence and any issues in the appeal when invited to do so by the chairperson. They may seek clarification of an answer or point at the time.
The clerk is under a duty to assist unrepresented parties to present their case, without becoming an advocate for the party concerned.
18.6 CONCLUSION OF THE HEARING
At the conclusion of the hearing and before retiring, the chairperson will ask the clerk whether there is anything further they wish to say. If the clerk does and makes substantive points, it will be necessary to invite the parties to comment if they wish.
Normally the clerk will retire with the tribunal members, but they will not take part in the decision-making process.
It is of course the duty of the tribunal to make the final decision in the case. Any member of the tribunal may seek the clerk’s advice at any time.
If, in the course of discussions in the retiring room, the clerk gives substantive advice to the tribunal which has not been previously mentioned during the hearing, it will be necessary to reconvene the hearing for that advice to be tendered in the presence of the parties and for them to be given an opportunity to comment on it. If the parties have already left, it may be necessary to adjourn and re-list the case for a further hearing.
The chairperson ensures that the clerk is informed of the tribunal’s reasoning and their understanding and findings on the facts, so that the final written decision with reasons may be drafted. In addition, the clerk may assist the chairperson with the wording of any oral decision that is to be communicated.
The clerk must accompany the tribunal on any site visit.
18.7 DECISION
The clerk is responsible for recording the tribunal’s reasons and drafting the decision for approval or amendment by members of the tribunal.
The chairperson will authorise the final agreed version of the decision before it is sent to the parties.
The draft should accurately record the findings of fact and law made by the tribunal.
It is the duty of the tribunal to produce a decision that gives a clear explanation for its decision.
The clerk should make a clear and full note of any instance where the tribunal has refused to follow advice given; a copy of the note should be sent to the Chief Executive.
18.8 Site inspections by the VT
The Tribunal may decide to inspect the appeal property and its locality, and the clerk will arrange this.
In NDR rating cases the tribunal may, subject to conditions, enter the premises of comparable properties that were admitted in evidence.
The parties will not be allowed to introduce new/further evidence during the site visit.
18.9 Appellant’s non-attendance / written submission
- Regulation 29 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 (SI 2005/758)
Any party may appear in person or be represented. If represented, the party must have informed the tribunal, prior to the commencement of the hearing, of the name of the representative.
If the case is to be heard in the party’s absence, they may appoint a representative or provide a written submission to be considered in their absence.
Written submissions should be sent to the clerk at least 5 working days before the hearing.
A written submission may contain:
- a statement of the issue(s) in dispute
- an explanation of the decision sought from the Tribunal
- details of the arguments and evidence relied upon
- the arguments may include legal arguments/legislation/case law
- copies of any relevant documents
The Tribunal will forward a copy of the submission to the other parties.
The written submission will be presented at the hearing for consideration.
If the appellant does not attend and is not represented and there is no written submission the VT may:
- dismiss the appeal;
- hear the appeal in absence of the appellant; or
- adjourn the hearing
The VT should enquire
- when the notice of hearing was sent
- what contact has there been between the parties
- what contact has been made with the Tribunal office and
- has a request been made for an adjournment / hearing in absence
If every other party to an appeal fails to appear except the VO, the Tribunal may dismiss the appeal.
If the appeal is dismissed in the event of the non-attendance of the appellant, they may request the decision to be set aside if they can show good reason for being absent.
18.10 Hearings in Private
The general rule is that “all hearings must be held in public” (reg 30(3) unless there is an exceptional reason to depart from that practice.
Exclusion of the public should be ordered only if alternative measures would not suffice.
The grounds for holding a hearing (or part of a hearing) in private – ‘a hearing in camera’ are as follows:
- confidential information
- to protect the interest of any child or vulnerable person or
- the tribunal considers it to be necessary in the interest of justice
A request for a private hearing should be made to the tribunal in public, explaining why that request is being made.
The tribunal will (may retire to) consider the comment(s) of the other party(ies).
The decision will normally be made public even if the hearing has been held in private.
Any published report of a case may be redacted in light of any decision made under this procedure.
19.1 Review of decisions
- Regulation 35 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 2005 (SI 2005/758)
A written application must be made to the Tribunal office, within 28 days, of the date the written decision was sent out. The application should state the following:
- cite the relevant grounds on which the application is made and
- provide a reasoned supporting statement for the application
An application may be dismissed if it is made outside the above time limit.
The application will be acknowledged by the VT.
19.2 Consideration of the application
Upon receipt of the application, the VT will ascertain if there is a valid ground for review.
Where there are no valid grounds for review, the VT will write to the relevant party informing them of this.
Where it is certain that grounds for review exist, the VT will refer the application to the tribunal for consideration.
19.3 Review
In so far as is reasonably practicable, the tribunal appointed to review a decision will consist of the same members who made the initial decision.
The tribunal entertaining the application for review may decide:
- not to undertake a review as the relevant criteria have not been met
- to undertake a review and not set aside the decision
- to undertake a review and set aside the decision under the hand of the Presiding member
If the decision is not set aside, i.e., it stands unchanged, the parties will be informed of their right to appeal.
The VT will inform the party(ies) of the tribunal’s decision as soon as is reasonably practicable.
19.4 Where the decision is set aside
Any order made as a consequence of the original decision will be revoked and the parties informed.
The tribunal will order the case to be re-heard or re-determined by the same or a different tribunal.
19.5 Publication of decision
The Tribunal is a judicial body and as such its work is of public interest and, in the spirit of open justice, decisions will be published on its website, as data protection legislation allows. There is an abundance of case law to illustrate the point and indeed the Court of Appeal in the recent case of L v Q Ltd [2019] EWCA Civ 1417 illustrates this principle that open justice is paramount. However, there are a very limited number of categories of case where it is not appropriate to publish any of the personal details of an appellant and in those types of cases a redacted version of the case may appear.
Records of decisions are to be retained for a period of six years from the date of issue or last amendment.
A party wishing their appeal to be excluded from the internet should make a request in writing to the VT.