In Centric Community Projects Ltd v Aberdeen City Council [2019] CSOH 76, the charity was successful in a judicial review action brought before the Outer House of the Scottish Court of Session challenging a Scottish council’s decision to deny charity rates relief on the basis that the charity was not using a property “wholly or mainly” for charitable purposes.

Background

Centric Community Projects Ltd (the Charity) is an English charity which is also entered on the Scottish Charity Register.  The Charity operated by (among other things) making space available to charities and community interest groups.  It took occupation of a property comprising 3 floors of open space surrounded by smaller offices, accompanied by a large car park, and advertised space at the property to charities and community interest groups.

On 11 July 2018, the Charity applied to Aberdeen City Council (the Council) for mandatory charity relief from non-domestic rates on the basis that the property was occupied by a charity and was “wholly or mainly used for charitable purposes”.

The Council carried out a site inspection around 21 November 2018 and, on 27 November 2018, notified the Charity of its decision to refuse relief on the basis that the property was not being used “wholly or mainly for charitable purposes”.  The notification provided that “unless the use of the Property is increased substantially, I will not be in a position to reconsider my decision”.

The Charity sought judicial review of the Council’s decision.

The legislative test

The test in question in the case is set out in s4(2) Local Government (Financial Provisions etc) (Scotland) Act 1962:

“If notice in writing is given to the rating authority that any lands or heritages (a) are occupied by … a charity and are wholly or mainly used for charitable purposes (whether of that charity or of that and other charities) … then, subject to the provisions of this section, any rate leviable in respect of the lands and heritages … shall not exceed one-fifth … of the rate which would be leviable apart from the provisions of this subsection.”

The Court’s decision

The essential issue was over the extent of use of the property by the Charity.  At the time of the Council’s inspection, and its decision, occupation of the property was relatively sparse, consisting of an exhibition on behalf of the Equality Council UK, some use of office space and use of some of the open space once a week or so by a pipe band.  (By the time the case came to Court, the Charity had granted licences to a number of other bodies to occupy the property).

The Court decided that the Council’s decision was “fundamentally flawed” on the basis that the Council had failed to take account of all relevant factors in reaching its decision.  The Council had taken the extent of the “active use” of the property as “the starting point and the end point of its decision”.  In doing so, it had failed to take into account factors such as it being the essence of the Charity’s purpose and its means of carrying it out that the amount of space in active use would vary from time to time.  The judge noted approvingly dicta from the case English Speaking Union Scottish Branches Educational Fund v City of Edinburgh Council [2009] SLT 1051 to the effect that for many charities the demand for space will vary over time and that “the only way in which the necessary space … would for sure be available when required would be if it had appropriate premises available throughout the year”.

The Council was required to consider the use actually made of the property consistent with the ordinary meaning of that phrase and to determine whether it is “wholly or mainly used for charitable purposes”, where the purpose of the use and the extent or amount of the use are both relevant.  However, the Council was required to have regard to “the charity’s whole circumstances”.  “Crucially” in this case, the mere fact that “large parts of” the property may not be in “active use” all the time or even most of the time did not mean the test was not satisfied.  The amount of space in active use would vary over time and this “variation in demand was a relevant factor”, as was the fact that it was integral to the Charity’s purpose in this case that there was from time to time space available – none of the property was “mothballed”, it was all offered for use.  The Council had failed to have regard to these relevant factors and its decision could not stand.

Comments

As tends to be the way with business rates relief decisions, the case is very fact dependent.  On the face of it, the facts bear similarity with other cases where charities have not been successful in challenging decisions on extent of use.  In this case, the Charity’s purpose and means of carrying it out, together with there being no space “kept” vacant or “mothballed” by the Charity, provided distinguishing factors.

The judgment sets out a helpful summary of both Scottish and English case law and the decision is welcome for its pragmatic view of the difficulties faced by charities with fluctuating property needs.

Nicola Evans is Charities Counsel at BDB Pitmans