A landmark judgement has been handed down by the Supreme Court in Cardtronics UK Ltd v Sykes (VO)  UKSC 21. The judgement addresses the thorny issue as to who is the rateable occupier of the site of a cash machine where the operator of the machine is different to the occupier of the premises in which it is located.
Cash machines in supermarkets are often operated by a separate bank rather than by the supermarket itself. Valuation Officers have listed those cash machine sites as separate entries in the rating list. That action caused retrospective rates liabilities to 2010 totalling many millions of pounds.
In November 2018 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.
The Supreme Court indicated that there are 10,000 stayed appeals awaiting this judgement and today Lord Carnworth has stated that the Supreme Court has unanimously agreed with the judgement of the Court of Appeal. He explained that both the parties (retailers and banks) derived a direct benefit from the use of the sites for the same purpose and shared the economic fruits of the activity for which the space was used. This is sufficient to support the conclusion that the internal ATMs remained in the occupation of the retailers. Furthermore, that external ATMs are to be treated the same as internal ones.
When I wrote about the Court of Appeal judgement in this case I set out some of the implications resulting from that decision… 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. The Supreme Court has not ‘closed the door’ on these arguments.
The full decision is here:UKSC-2018-0225-judgment