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Averdieck Case Analysis: Navigating SDLT and Public Rights of Way

Published by UK Property Accountants
Published Date: November 15, 2023
Categories: Case Law, HMRC, SDLT

In a recent case before the First-tier Tribunal Tax Chamber, James and Charlotte Averdieck appealed against Closure Notices issued by the Commissioners for His Majesty's Revenue and Customs (HMRC) regarding the classification of their property for Stamp Duty Land Tax (SDLT).

The appellants claimed that the presence of a public right of way on their property should classify it as "Mixed Use" rather than solely residential, resulting in a lower tax rate.

Let's delve into the details of the case and explore the implications for tax advisers and property owners.


The Averdiecks jointly purchased a property for £2,999,000, declaring it as residential property for SDLT purposes. Later, they sought to amend their SDLT return, asserting that the property should be classified as "Mixed Use" due to the existence of a public footpath.

They claimed that the public footpath restricted their use and enjoyment of the land, making it unsuitable for exclusive residential purposes. After an enquiry and subsequent review by HMRC, Closure Notices were issued, leading to the appellants' appeal.

The Legal Framework

The case hinged on the interpretation of Section 116 of the Finance Act 2003, which defines residential property for SDLT purposes. The section broadly includes buildings used or suitable for use as a dwelling, along with their associated gardens or grounds.

Non-residential property encompasses any property that does not meet the definition of residential property.

Arguments Presented

The appellants argued that the presence of the public right of way, in the form of a road, on their property constituted a separate commercial purpose. They contended that the interruption caused by the road's use, combined with statutory obligations related to its maintenance, rendered the property unsuitable for exclusive residential use. They cited previous case law and HMRC guidance to support their position.

The Tribunal's Decision

The Tribunal, presided over by Judge Anne Scott, carefully considered the arguments presented by both parties. In her decision, she noted that HMRC's  Capital Gains Tax (CGT) guidance was not applicable to the SDLT issue at hand.

Referring to the judgments in previous cases, Judge Scott emphasised that the grounds of a residence should be understood in their ordinary meaning, encompassing land attached to or surrounding a house that is occupied with the house and available for the owners' use.

The Tribunal's Decision on averdieck case

She stressed that grounds need not be used for any particular purpose, including ornamental or recreational purposes. Ultimately, the Tribunal found that the presence of the public right of way, namely the road, did not preclude the property from being classified as residential. 

The maintenance obligations imposed on the appellants, while burdensome, did not sufficiently impede their use and enjoyment of the property to warrant a classification as "Mixed Use." The Tribunal upheld the Closure Notices, dismissing the appeal.

Implications for Tax Advisers and Property Owners

This case highlights the importance of carefully considering the impact of public rights of way when determining the  Stamp Duty Land Tax (SDLT) classification of a property. Tax Advisers need to understand the legal framework and relevant case law surrounding SDLT to provide accurate guidance to clients.

Property owners must assess the nature and extent of any public rights of way on their land before declaring the property's classification for SDLT purposes. It is crucial to consult with experienced professionals to ensure compliance with SDLT regulations.


The Averdieck case underscores the importance of understanding the complexities surrounding SDLT classifications in the presence of public rights of way. As Tax Advisers, it is crucial to stay abreast of the latest legislation, case law, and HMRC guidance to provide accurate and effective advice to clients.

For property owners, seeking professional assistance when navigating SDLT matters can help ensure compliance and minimise the risk of disputes with HMRC. By partnering with knowledgeable tax experts, individuals can confidently navigate the intricacies of SDLT and make informed decisions regarding their properties.

If you require assistance with SDLT or any other tax-related matters, reach out to our experienced team of tax advisers. We are here to provide expert guidance, address your concerns, and help you achieve your financial goals while ensuring compliance with tax regulations. 

Need expert advice on SDLT and property taxation?

Contact us today for efficient and hassle-free assistance.

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