Barry O'brien v John Jeremy Secker (Valuation Officer)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE SCHIEMANN,LORD JUSTICE ROCH |
| Judgment Date | 16 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0516-10 |
| Docket Number | LATRF 95/0921/B |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 1996 |
[1996] EWCA Civ J0516-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
Royal Courts of Justice
Strand, London WC2
Lord Justice Nourse
Lord Justice Roch
and
Lord Justice Schiemann
LATRF 95/0921/B
THE APPELLANT MR. O'BRIEN appeared in person.
MR. D. HOLGATE (instructed by the Solicitor of Inland Revenue) appeared on behalf of the Respondent.
Thursday, 16th May 1996
I will ask Lord Justice Schiemann to deliver the first judgment.
This is an appeal by way of case stated from a decision of the President of the Lands Tribunal, His Honour Judge Marder QC, by a ratepayer against the entry in the rating list of an advertising right in relation to 5 Wincheap, Canterbury in Kent. The respondent is the Valuation Officer for the City of Canterbury.
There were raised before His Honour, and are raised before us, three issues, of which really the first is the most important. Those issues are:
(1) whether an agreement between a company called Instyle (Kent) Limited and the appellant dated 25th April 1991 created a right rateable as a hereditament under section 64(2) of the Local Government Finance Act 1988;
(2) whether that hereditament, if any, was located in the rating district where the right was exercisable; and
(3) whether, by virtue of section 65(8) of the Act, the hereditament was to be treated as occupied by the appellant.
The tribunal answered each of those questions in the affirmative.
It is useful if straightaway we turn to the sections with which we are primarily concerned. Section 64 of the Local Government Finance Act 1988 provides, in subsection (1):
"A hereditament is anything which, by virtue of the definition of hereditament in section 115(1) of the 1967 Act, would have been a hereditament for the purposes of that Act had this Act not been passed."
That subsection does not concern us directly. Subsection (2) does. It provides:
"In addition, a right is a hereditament if it is a right to use any land for the purpose of exhibiting advertisements and —
(a) the right is let out or reserved to any person other than the occupier of the land; …"
Subsection (4) of that section provides:
"A hereditament is a relevant hereditament if it consists of property of any of the following descriptions —
(a) lands; …
(e) any right which is a hereditament by virtue of subsection (2) above."
Subsection (8) provides:
"A hereditament is non-domestic if either —
(a) it consists entirely of property which is not domestic, or
(b) it is a composite hereditament."
Subsection (9) provides:
"A hereditament is composite if part only of it consists of domestic property."
Subsection (11) provides:
"In subsection (2) above `land' includes a wall or other part of a building and a sign, hoarding, frame, post or other structure erected or to be erected on land."
Section 65(8) provides:
"A right which is a hereditament by virtue of section 64(2) above shall be treated as occupied by the person for the time being entitled to the right."
The facts of this matter are not in dispute and are set out in the tribunal's statement of case. I can take them fairly shortly. Mr. O'Brien is an advertising contractor. The premises on which the advertisements were placed consist of a corner shop and an upper floor occupied by Instyle. On 25th April 1991 an agreement was made between Instyle as licensor and the appellant as licensee. By the agreement the licensor granted to the licensee exclusive right to use for advertising purposes the flank wall outside the premises, 5 Wincheap, for a period of three years. The licensee was granted full and free access to the site in order to place advertisements and to fix and maintain a structure or structures for displaying advertisements and for illuminating the same, any such structure remaining the sole property of the licensee and being removable by him.
Pursuant to that agreement the appellant erected a hoarding on the flank wall on a date between April and June 1991. That was in due course removed in 1993 because of planning difficulties. The respondent valuation officer altered the non-domestic rating list to include, with effect from June 1991, an entry in respect of the hereditament. It is that entry which is in challenge in the present case.
The crucial first argument put forward by the appellant before the tribunal and us turns on subsection (2) of section 64, as read with subsection (11) of that section. He said that the "land" which is referred to in subsection (2) was the hoarding and, in consequence, he was the occupier of the hoarding and subsection (2) did not bite at all. By contrast, the valuation officer said, "No, the land was the wall and, it being common ground that the appellant was not the occupier of the wall, the subsection bites." One can see a case can be made for either of those interpretations; but the tribunal held that it should be the second.
We have had prepared for the benefit of this court an extremely full, careful and thorough written skeleton argument on behalf of the respondent by Mr. Holgate; and, for my part, I should like to express my indebtedness to him, although we have not called on him. In that skeleton argument he very carefully traces the legislative history of the provisions which currently apply. That exercise is useful both in shedding light as to the meaning of the current legislation and as to the significance of the decision of the House of Lords in Imperial Tobacco Company (of Great Britain and Ireland) Ltd. v. Pierson (Valuation Officer) [1961] AC 463. In his written submissions Mr. Holgate traced the matter as follows; and I carefully traced it before we came into court in the way that he suggested and, in my judgment, his propositions are each well founded.
The effect of sections 64(1) and 65(2) of the 1988 Act is that, in general, what is a hereditament and who is the occupier thereof is to be determined by the principles established in earlier case law. By section 42(1) of the 1988 Act, a local non-domestic rating list must show each hereditament which is a relevant non-domestic hereditament situated in the rating authority's area. A person who is in occupation of the whole or part of such hereditament in a local non-domestic rating list is liable to pay a non-domestic rate: see section 43(1). A relevant hereditament includes one falling within section 64(2): see section 64(4) of the 1988 Act.
The concept of hereditament is inextricably bound up with the concept of the rateable occupation, and Mr. Holgate draws our attention to the standard learning on the topic. He points out that in the present type of case a number of problems previously arose before the enactment of specific statutory provisions. For example, it was thought that a person granted a right to use a wall for advertising and to place structures thereon might not have sufficiently permanent occupation to be a rateable occupier. On the other hand, there was uncertainty as to whether the rates payable in respect of the land by the grantor of that land should be increased to take account of the advertising use. These were problems which were discussed in R. v. St. Pancras Assessment Committee [1877] 2 QB 581.
Parliament intervened to deal with the particular problems posed by advertising rights. Mr. Holgate referred us to the Advertising Stations (Rating) Act 1889, in particular...
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