Supermarkets in "general control" of ATM sites...
Updated: Nov 19, 2018
The decision of the Court of Appeal in the dispute between Cardtronics Europe Ltd and Others -v- Chris Sykes and Others (Valuation Officers)  EWCA Civ 2472 clarifies long established principles on Rateable Occupation where the operator of an ATM and the occupier of the premises the ATM is sited in are not the same company.
The Upper Tribunal (Lands Chamber) accepted that ATM's sited inside the store and in the external wall, enhanced the store's "retail offer" by adding to the range of services available at the store; that some of the stores had been either designed to accommodate an ATM or physically adapted to accommodate it; that access to the ATM for regular servicing, maintenance and loading could only be achieved from within the store, and with the retailer's co-operation or consent; and that in some, if not all cases, the retailer's staff were involved in tasks. The ATM was not only physically incorporated into the store premises, it was also functionally integrated with the operation of the store. All ATM's whether in store or external required the assistance of the retailer to operate it from the site. This was so even in the case of the external ATM accessed by the public when the retail store was closed and "without that assistance, the bank would not be able to operate an ATM on the site, for the purposes of its own business". Despite its findings on fact the Upper Tribunal decided that an ATM sited freely inside a store was in the occupation of the host store; however, ATM's in adapted space or external were in the rateable occupation of the bank and not the retailer. The Upper Tribunal erred in focusing on why the site was being occupied and not what was being done on the ATM site. That the Tribunal had confused the retailer's motive for allowing the bank into occupation of the ATM site with the question whether the retailer remains in occupation for the purpose for which the site is used.
The CoA accepted that both the bank and the retailer had a "common purpose" to provide ATM services to the public at a retail store. "This was to their mutual advantage." The Court said the retailers remained in occupation and possession of the ATM sites in their stores, as the banks had not been give exclusive possession for their own purposes and that the retailers had retained "general control" over those sites. This "general control" remains the decisive factor in establishing who is in rateable occupation of the site - the question here "does the owner retain general control over the site, or not?"
The decision of the Court follows that of Westminster City Council v Southern Railway and before it that of Halkyn District Mines Drainage Co. and that of number of Scottish cases.
The outcome of the Court's decision is that the sites of ATM's within a host store are to not be treated as a separate hereditament and therefore none of the alterations to the rating list should have been made by the Valuation Offices or sustained on appeal to the VTE and, in turn, the Tribunal.
It is noted that the VOA sought leave to appeal this decision to the Supreme Court; however, it was refused by the Court of Appeal. The Supermarket's won't be out of the woods until the VOA's 28 day window of opportunity to appeal has lapsed. If this dispute goes no further then the VOA will have circa 50,000 "stayed" ATM's cases to process.
Watch this space...