Clayton v Kingston-upon-Hull Corporation
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE DONOVAN |
| Judgment Date | 10 November 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1110-1 |
| Court | Court of Appeal |
| Date | 10 November 1960 |
[1960] EWCA Civ J1110-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls,
Lord Justice Harman, and
Lord Justice Donovan.
MR. W. ROOTS, Q.C., and MR. RAYMOND PHILLIPS appeared on behalf of the Appellants, instructed by The Solicitor of Inland Revenue.
MR. PETER RAWLINSON, Q.C., and MR. J. P. HARRIS appeared on behalf of the Respondents, instructed by The Town Clerk, Hull.
: The claim of the Appellant Valuation Officer in this case is that the Lord Mayor, Aldermen and Citizens of Kingston-upon-Hull — that is, the Kingston-upon-Hull Corporation — are in rateable occupation of the Ferens Art Gallery, Victoria Square, in that City. The answer of the Corporation, which found favour with the Lands Tribunal, is that the obligations under which, by virtue of certain Deeds made in the years 1919 and 1928 between the late Mr. Ferens and the Corporation (to which I shall refer later), any "occupation" by or on behalf of the Corporation is in the character of mere custodians for the public; that accordingly the "occupation" by the Corporation has no "beneficial" or other quality sufficient to attract liability to rates; and that the principle applied in the Brockwell Park and Downham Market cases, reported in 1897 Appeal Cases at page 625 and 195Z 2 King's Bench at page 55 respectively, to parks or open spaces are no less applicable to a public art gallery, such as the Ferens Gallery.
If the matter were free from authority and could be judged by common sense and the ordinary usages of language, I should, I confess, feel little doubt that the tests of "occupation" applicable in the case of a public park or a public open space would have little reference to a public art gallery controlled and managed as is the gallery in the present case. The facts in the case appear to have been agreed and are set out in the second half of page 2 and the first half pf page 3 of the decision, I do not repeat them in this judgment; for they are such as you would expect them to be. Though no-one sleeps on the premises they are under the control of a Director and Assistant Director responsible, with the staff necessary for the purpose, for the maintenance, repair, decoration, lighting, heating, etc., of the building and for its ordinary security. It is open to the public during certain hours in the day-time. No admission fee appears to be charged and no regulations seem to have been made or published. There is no evidence of the ownership or character of the pictures or other works of art displayed. The area open to the public is approximately two-thirds of the whole. The remaining parts of the building, to which the public are not admitted, are used for the ordinary purposes, that is to say, as offices, store-rooms, etc., normally appropriate to the use of the building as an art gallery.
On this basis of fact the question "Are the premises occupied, and if so by whom?" when applied to this art gallery would, as I have said, appear to me to yield, according to common sense and use of language, quite a different answer to that appropriate to the same question when related to a public park or open space. In the latter case the sensible answer would to my mind be — in any ordinary acceptance of language — the park or open space is not "occupied" by anyone; the public have, when the gates are open, free and unrestricted access to the whole of it, save only such buildings or places as are reserved for the use of the park keepers or custodians. But in the case of a building such as the present gallery I should have thought that the sensible answer was no less certainly that it was "occupied" by those whose function it is to maintain the building in the ordinary way as such and not the less so because during the specified hours of the day-time members of the public are admitted to look at the works of art displayed.
It is well established that where more than one person or set of persona have rights to be in or upon a building, that person or set of persons having the control and regulation ofthe building is treated as the rateable "occupier" (See. Westminster Pity Council v. Southern Railway Co. & Others, reported in 1936 Appeal Cases at page 511. per Lord Russell of Killowen at pages 529-530). It is also well established that "occupation" in order to attract liability to rates must be "beneficial occupation". But that phrase does not mean "profitable occupation" and may be satisfied by occupation in discharge of a statutory duty or statutory power or for discharging the duties of a trustee — see for example the case cited to us of a public library, Liverpool Corporation v. W. Derby Union, reported in 92 Law Times, at page 4&7. It has also been clearly established since the case of Jones v. Mersey Docks, reported in 11 House of Lords Cases at page 4431 as pointed out in the speeches in the Brockwell Park case, that the fact of a property being held for public purposes does not deny "beneficial occupation" in the occupier.
In the Brockwell Park case — which followed the case relating to Putney Bridge, Hall v. Putney Overseers 7 Queen's Bench Division, at page 223, and was in turn followed by this Court in the Downham Market case supra relating to a War Memorial Playing Field — it was held by the House of Lords that the right of the public to the use and enjoyment of the Park was "free and unrestricted", save only for those buildings reserved by the London County Council for the purposes of management and conservation of the Park, activities purely ancillary to the general purpose of the public park and occupying together a very small area compared with that of the Park as a whole. It appears from the relevant Act of Parliament under which the London County Council acquired the Park, that its duty to give to the public "free and unrestricted" access was perpetual and involved a denial of any right to charge an entrance fee. In the Downham Market case this Court held that the public were entitled to a similar "free and unrestricted access" — the power of the local authority on occasion to close the field and charge an entrance fee — as for a Hospital Pete — being minimal in effect; and the power of the authority in certain circumstances to sell the field no more qualifying for practical purposes the "permanence" of the public right of enjoyment than the possibility of the London County Council getting a special amending Act in regard to Brockwell Park.
In their speeches in the House in the last named case both Lord Halsbury, Lord Chancellor, and Lord Herschell refer to and appear to base themselves upon the dual grounds of free and unrestricted user by the public and of the absence of any beneficial occupation in the London County Council. Lord Halsbury at the beginning of his speech, at pages 629-630, said: "I do not think there is here a rateable occupation by anybody. The 'public' is not a rateable occupier; and I think that one sentence disposes of the case". Later, on page 630, he continued: "Once it has been found, as in this case, that the occupation cannot as a matter of law be a beneficial occupation, there is an end of the question, I say as a matter of law, because that it does not give a beneficial occupation as a matter of fact is nothing to the purpose. Here there is no possibility of beneficial occupation to the County Council; they are incapable by law of using it for any profitable purpose; they must allow the public the free and unrestricted use of it".
Lord Herschell on page 631, said: "Ho tenant would give anything for them" — that is to say, the park and the buildings — "seeing that every part of them is dedicated to the public use, and that the small sums of money which might be received in respect of them would, as the case finds, be more than absorbed by the expense of keeping them in order". On the following page he said. "I am not satisfied that the County Council are occupiers of this park for rating purposes, though the legal possession is, no doubt, vested in them. They seem to me to be merely custodians or trustees to hold it and manage it for the use of the public".
But as pointed out by Mr. Justice Kennedy in the Liverpool Corporation (public library) case, the two things are in truth manifestations of the single, decisive, proposition, viz. that on the facts of the Brockwell Bark case the free and unrestricted user by the public was exhaustive and exclusive of any right to any occupation, or at any rate any beneficial occupation, in anyone else. By wav of distinction, the Divisional Court in the Liverpool Corporation case emphasised the absence of any statutory or other obligation to continue to allow the premises there in question to be used as a public library for any particular length of time, still less in perpetuity.
I do not say that the principles of the Brockwell Park case cannot be applicable to a building as opposed to an open space. It may well be that if a public authority acquire a piece of land and erect upon it, say, a public shelter and thereafter hold the property by virtue of some statute or of a Deed of Trust under the obligation to maintain it as a public shelter for all time, the public could be said to have such right of free and unrestricted user as would be exhaustive and exclude any "beneficial occupation" in the authority. But the question here is: What is the nature and what the extent of the public rights to or in the Ferens Art Gallery? So far as I, can see such rights are to be found and found only in the final words of Clause 5 of the Trust Deed of the 9th December, 1919. The words are: "Upon trust to permit the same to be used and enjoyed by the citizens of the said City and County of...
To continue reading
Request your trial
- West Yorkshire Metropolitan County Council v Miller (Vo)
-
Clayton v Kingston-upon-Hull Corporation
...I would respectfully adopt the language of Harman, L.J. at page 10 of the report of the present case in the Court of Appeal in [1961] 2 W.L.R. 1 as follows: — "As I have already said I cannot think this can be treated as an unoccupied building. It is in fact actively used and occupied ever......