31st January 2024 - James Burkitt

The practice of empty rates mitigation involves moving boxes in and out of a property. This creates short periods of occupation which trigger new rates free periods and allow the ratepayer to reduce their rates liability. This is a strategy often adopted for long term empty properties. The cycle of emptying and occupying a property can continue indefinitely and in turn significantly reduce business rates liability, normally by 75-80% per annum.

In this article, we explore the background to this practice along with potential future changes:-

Background

Rating can be traced back to the Poor Relief Act 1601, which was introduced under Queen Elizabeth 1^st and the act taxed property if occupied.

Move forward to 1966 and an unoccupied or empty rate was introduced. Move forward to the present day and if a property is empty, the local council can award Empty Rates Relief for a period of 3 months (or 6 months for industrial property). However, after this period of relief the owner of the property is liable to pay full business rates on their empty property.

Case Law

Box shifting has its roots in the case of Makro Properties v Nuneaton and Bedworth Borough Council [2012]. This involved a cash and carry warehouse where only 0.2% of the floorspace was used for the storage of pallets of documents.

Empty rates mitigation schemes commonly rely on short periods of occupation (42 days) followed by periods of vacating a property to trigger a new empty rates free period, a cycle which can currently continue indefinitely.

Public Health England v Harlow District Council [2021] set out a twelve point checklist to assist ratepayers and local authorities in determining whether a property is indeed occupied and one point that stands out is that “it does not matter if the possessor’s predominant or sole motive is mitigation of or exemption from rates liability”.

Business Rates Avoidance and Evasion Consultation

The Government recently consulted on business rates avoidance and have proposed various potential measures, as follows:-

• Increasing the 42 occupation rule to 3-6 months
• Providing a limited number of empty rates free periods in a given amount of time
• Placing additional conditions on the meaning of occupation e.g. more than 50% of the floor space would need to be occupied

Conclusion

There are arguments on both sides.

In the current climate, post Covid-19, in particular retailers but also offices are still recovering. Properties don’t usually fall vacant by choice and by imposing more costs onto a property and the owner this will only hinder property markets and ultimately our pensions. 

In the other camp, lead by the organisation known as 'Ban Box Shifting', statistics have been put forward such as councils losing 1% of their annual income (or £250 million) which could fund 2,000 new council homes. Despite the fact the government itself admits “it is not possible to accurately determine the financial loss resulting from abuse of the business rates system.” the cause of banning box shifting has been gaining traction with support from multiple MP’s and councillors.

Whichever side of the argument you are on, it will certainly be interesting to see what legislative changes are on the horizon.