Blake v Hendon Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE,LORD JUSTICE DEVLIN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 28 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0728-1 |
| Court | Court of Appeal |
| Date | 28 July 1961 |
[1961] EWCA Civ J0728-1
In The Supreme Court of Judicature
Court of Appeal
On the Appeal fron the Lands Tribunal.
Lord Justice Sellers
Lord Justice Devlin and
Lord Justice Danckwerts
In the Matter of the Local Government Act, 1948 and
In the Matter of the Rating and Valuation Acts, 1925 to 1957
In the Matter of an Appeal from the North Middlesex Local Valuation Court
Mr. J.T. MOLONY, Q.C. and Mr. A.C. MUNRO KERR (instructed by Mr. R.H. Williams) appeared on behalf of the Appellants the Hendon Corporation.
The Rt. Hon. SIR DEREK WALKER-SMITH, Q.C. and Mr. J. RAYMOND PHILLIPS (instructed by Solicitor of Inland Revenue) appeared on behalf of the Respondent Valuation Officer.
Lord Justice Levlin will deliver the judgment of the court.
DELVIN: The question in this case is whether Stone-grove Park, a public park owned by the Hendon Corporation, should be entered in the Valuation List as. exempt from payment of rates. The general principle that governs this point is no-in dispute. Rateability' depends upon beneficial occupation by same legal entity, an individual or corporation. If the Corporation are merely custodians and trustees of the park for the "benefit of the public there is no beneficial occupation by then and occupation by the public is not rateable. If the Corporation has the full ownership the park, beneficial as well as legal, and the publice are admitted not as beneficiaries but licensees, the park is in law occupied by the Corporation, who must pay rates accordingly. A highway is the obvious example of land which cannot be said to be occupied at all unless" by the public; a decision that Putney Bridge was not rateable started this branch of rating law in the cases that have followed public parks have generally been treated as highways; but other premises enjoyed by the public, such as libraries and art galleries owned by local authorities, have generally been treated as places occupied by local authorities to which members of the public are admitted as licensees.
The first step taken towards the acquisition of Stonegrove Park was on 22nd June, 1931, by the Corporation's predecessors, the Hendon Urban district council, when they resolved to apply for loan sanction for purchase of the land as an open space. On 10th February, 1932, they acquired the land acting under the Public Health Act, 1875, section 164, which empowers any urban authority to "purchase or take on lease, lay out, plant, improve and maintain lands for the purpose of being used as public 'walks or pleasure grounds'". The necessary work was done and on 21st July, 1934, the park was officially opened by the Mayoress of Hendon and it has ever since been used as a public park and recreation ground.
The leading case in this branch of the law is Lambeth Overseers v. London County Council (1897 Appeal Cases, 625). "Brockwell Park was acquired by the London County Council under the terms of a special Act which authorised them to buy it and hold it as a park and lay out, maintain and preserve it as a park for the perpetual use thereof by the public for exercise and recreation. Lord Halsbury, Lord Chancellor, described the London County Council as "merely custodians and trustees for the public", who must be allowed, the free and unrestricted use of it". Lord Herschell described the land as by statute dedicated to the public use. This principle was applied in Liverpool Corporation v. West Derby Union (1908 2 King's Bench, 647), where the land was acquired under the Liverpool Improvement Act, 1865, section 14, which enabled the Corporation to buy any lands "which they may think suitable for public parks or playgrounds, and places of recreation for the inhabitants of the borough, and may from time to time, as they think fit, lay out and appropriate the same". The principle was also applied in Sheffield' Corporation v. Tranter (1957 1 Weekly Law Reports, 843), where the land was acquired under section 164 of the Act of 1875, the section we have to consider.
In these and other similar cases consideration was given by the courts to statutory powers which from time to time had been granted to local authorities owning and managing parks and which might be thought to enable them to interfere with "the free and unrestricted use" by the public. In these cases it was contended that such powers inhibited the local authority from dedicating the park to the use of the public with the result that they remained themselves as occupiers. So far such contentions have not succeeded. In Liverpool Corporation v. West Derby Union this court had to consider the statutory power to sell and let land acquired as suitable for public parks and subsequently not required for that purpose; and also a power under bye-laws to close the park for up to seven days in any one year and to charge admission on such days. In Burnell v. Downham Market Urban District Council (1952 2 Queen's Bench, 55), a similar case in which land was acquired under the Open Spaces Act, 1906, the local authority bad agreed to allow private clubs in return for payment to use cricket and football pitches on certain days. Lord Evershed, Master of the Rolls, giving the judgment of this court, said at page 67 that this was not an interference with "free and unrestricted use" and that the tribunal was entitled to conclude as a matter of fact that the arrangements made by the Council with the private clubs were ancillary to their management of the field as an open space. The same test was applied in Sheffield Corporation v. Tranter, where the local authority let out a refreshment pavilion to a caterer at an annual rental: Lord Evershed at page 854 said that the tribunal was justified on the facts in finding that the tenant's conduct of the refreshment pavilion was nothing mere than an ancillary activity of the conduct of the park itself.
Sir Derek Walker-Smith, for the respondent, the Valuation Officer, contends that Stonegrove Park is not exempt and he begins his argument by inviting us to recognize a fundamental distinction between the terms of section 164 of the Public Health Act, 1875, and those of the special Act in the Brockwell Park case, which we have summarised above. In the latter case, he submits, the local authority had no alternative except to "dedicate" the land to the public. In the present case and under section 164 they have a choice. Sir Derek does not suggest - the contrary is well settled -that without express statutory authority the local authority could use land acquired under section 164 for any purpose other than that permitted by the section, that is as public walks or pleasure grounds. But, he submits, this purpose could be effected in one of two ways. A local authority can either dedicate the land to the oublic, thus making them the beneficial occupiers and reserving for itself only the power of management and control; or it can retain the right to occupation admitting the public as licensees, as in the case of a library or public gallery. From this distinction two consequences are said to follow.
The first and less important is that exemption cannot arise until the act of dedication is established as a fact. Sir Derek submits that there is no sufficient finding of fact in the Case stated by the Lands Tribunal. It seems clear that the Corporation intended to dedicate the land and it is their case that they in fact did so by the opening of the park on 31st July, 1534. The point is not of great importance; for if the Valuation Officer succeeded upon it alone, the Corporation could before the next Valuation List put the matter right by making some formal act of dedication and thereby supplementing any legal defects there may have been in the Mayoress's opening speech. For reasons which we shall give below we do not think that any formal act is necessary.
The second and more important consequence depends on a further development of Sir Derek's argument. While section 164, taken by itself, gives the local authority a choice, there are, he argues, other provisions in other statutes which by their effect on section 164 destroy the right of choice, deprive the local authority of the power to dedicate and compel it willynilly to retain the right to occupy. The chiefs if not the sole, provision relied upon by Sir Derek as having this effect is section 164 of the Local Government Act, 1933. This permits a local authority to let any land which they may possess with the consent of the Minister for any term; and without the consent of the Minister, for a term not exceeding seven years. (It is an odd mischance that the two sections to which we have to give the closest consideration are both numbered 164; I shall refer to them respectively as section 164 of 1875 and section 164 of 1933).
Sir Derek submits that under section 164 of 1933 the power of a local authority to let land is quite unrestricted; Hendon Corporation could, and still can, let Stonegrove Park to anyone for any purpose, thus excluding the public from their enjoyment of the park. But they could not do that if the park were land belonging to the public who had the beneficial ownership of it. Thus the power to let under section 164 of 1933 is, according to this submission, inconsistent with the power to dedicate under section 164 of 1875. Sir Derek argues that, following the well known line of cases beginning with Ayr Harbour Trustees v. Oswald (1883) 8 Appeal Cases, 623, a corporation may not so act as to disable itself from exercising in the future a power that is granted to it by Parliament'. Therefore on 21st July, 1934, it would have 'been ultravires for Hendon Corporation to have dedicated Stonegrove Park to the public, since if it had done so, it would have deprived itself of its right to let the land for some other...
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