East Yorkshire Motor Serviced Ltd v Clayton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sellers,LORD JUSTICE DANCKWERTS |
| Judgment Date | 20 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0720-2 |
| Court | Court of Appeal |
| Date | 20 July 1961 |
[1961] EWCA Civ J0720-2
In The Supreme Court of Judicature
Court of Appeal
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 (Apportionment) Act 1928 and
In the Matter of Appeals from the Kingston-Upon-Hull and East Rising (South) Local Valuation Court
Mr. PATRICK BROWNE. Q.C. and Mr. DAVID WIDDICOMBE (instructed by Messrs. Sydney Morse & Co.) appeared on behalf of the Appellants East Yorkshire Motor Services Limited.
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.
: The appellants' premises 244 Hull Road, Anlaby Common, have in the past been scheduled as an industrial hereditament and placed in Part II of the Valuation List. The premises therefore have had the benefit of the appropriate allowances for the rating of industrial hereditaments.
In 1956 the appellants sought a reduction of the assessment and in 1957 the Valuation Officer countered with a proposal to transfer the premises to Part I of the Valuation List, to which proposal the Local Valuation Court assented and transferred the premises accordingly. The premises therefore lost derating benefit. The Valuation Court's order was affirmed by the Lands Tribunal. The appellants seek to have the premises restored to Part II, contending that they constitute an industrial hereditament under section 3 of the Rating and Valuation (Apportionment) Act, 1928, and are entitled to derating benefits, subject to some apportionment.
The appellants have a fleet of 240 buses which in the ordinary course have to be maintained in serviceable order. Provision is made by the appellants not only for daily or weekly attention, that is regular servicing by cleaning and oiling, minor adjustments and minor repairs, but also for extensive periodic reconditioning and overhaul of the vehicles or parts thereof - the engine, gearbox and axles etc., the replacements of parts taking place on a mileage basis. This case turns on how those functions necessary to keep the fleet of vehicles in efficient condition were performed.
The parties to the appeal, wishing to amplify the facts found in the Tribunal's Decision, agreed to append to the Case, with the approval of the Lands Tribunal, a transcript of the evidence of a witness. The court disapproves of this course as a matter of practice. It can rarely, if ever, be justified. The necessary facts should be found in the Case stated for the consideration of this court on any question of law. The convenient practice of incorporating any judgment or decision of the Lands Tribunal in accordance with a direction of the Master of the Rolls on the 27th July, 1956, does not alter the established practice that the Case should state the facts found sufficiently for the purpose of an appeal. The direction expressly refers to cases in which a written decision has been given containing all necessary findings of fact. On this occasion the court found it unnecessary to remit the case and so was able to avoid further delay and probable additional costs by adding to the Stated Case a written statement of additional facts agreed by the parties.
The hereditament in question is only one of the premises occupied by the appellants for the purposes of their business and it is necessary to regard the function of these premises in relation to the organisation as a whole. There are in addition seven depots where the vehicles are maintained and two so-called dormi-houses where vehicles are garaged but not apparently serviced in any way.
The Decision of the Lands Tribunal recognises that the premises under consideration are used for two kinds of work, for the manufacture and reconditioning of parts or units of vehicles, which parts or units are for the most part dismantled at and sent from the local service depots to this central workshop and which, after remaking or reconditioning, are stored and form a stock of spare parts to serve as replacements for vehicles generally and the premises are also used for the repair or reconditioning of a limited number of vehicles, four each week, which come to an allotted portion of the premises. A vehicle remains there for about three weeks.
The learned President having found these distinctive and separate uses of the premises and having asked "What are the real activities carried out in these premises", it would appear, disregarded the difference between reconditioning of the parts or units and the maintenance of the vehicles themselves and inquired only as to whether the nature of the work undertaken on the premises was reconstruction or repairing and reconditioning.
In my opinion and with all respect to the learned President, the decisions of the House of Lords do not support such an approach and the reasoning seems to disregard the decision of the House which has stood, and I do not doubt has been applied, since 1931.
I turn at once to the case of Potteries Electric Traction Co. Ltd. v. Bailey, which was considered at the same time as ( Moon v. London County Council 1931 Appeal Cases, page 151). These cases established that in determining whether an hereditament occupied and used as a factory is primarily occupied and used for purposes which are not those of a factory it is the actual use to which the hereditament itself is put that has to be considered and not the use to be made of the products of the hereditament or of the work there carried on.
The omnibus company there operated a fleet of vehicles and occupied and used the hereditament for the manufacture of spare parts for the fleet and for other manufacturing and repair processes distinct from ordinary maintenance in connection with the fleet. Except for that portion of the appellants' premises which is given over to the 'docking" and repairing of the vehicles which come into the premises, the activities in the present case, in my view, closely resemble those of the Potteries case. It would seem that the reconditioning of parts and units taken from the vehicles in the fleet were received and repaired in a similar way to the practice in the appellants' hereditament. There is nothing to indicate, I think, that the used units were scrapped and only new units constructed. The House held that the hereditament in that case was not occupied and used for purposes which were not those of a factory and that the manufacture of an article needed to maintain differed from "maintenance" as used in section 3 sub-section 2 and that the hereditament, except as to one part used as a paint shop, was a factory and an industrial hereditament.
At page 165 Lord Dunedin, after saying that the scheme of the 1928 Act seemed to him to be remarkably clear, read section 3 sub-section 1 and then interpreted it. He said that the first thing a person making a claim to have his hereditament included in the Special List (that is Part II now) has to show is that the hereditament is a factory or workshop.
The premises now under consideration are undoubtedly within the definition of the Factory and Workshop Act, 1901, section 149, which defines the ways in which the character of a factory or workshop can be obtained.
Lord Dunedin continued (on page 166): "Now, as to the proviso, the reasons for it are, I think, plain. Once the term factory or workshop' (I shall not go on repeating the double term) is given, the whole hereditament obtains that character. A workman injured in any part of the hereditament, however removed from where the machinery was, would, under the old law, before it was swallowed up under the wider provisions of the Workmen's Compensation Acts, have obtained relief. But it was not wished to extend this rating benefit to a hereditament which, although it was called a factory, yet was not primarily, and that, I take it, is equivalent to 'mainly', used for factory purposes. To do so when the factory engaged but a small portion of the hereditament would be to give relief little in keeping with the true industrial tenement sought to be relieved. Accordingly, you have enumeration of various things which are not factory operations. But be it observed that in each and all of the sentences, (a), (b), etc., the nominative is a hereditament which is described as being used and occupied primarily for a specific purpose which is not a factory purpose. Obviously part of the hereditament is a factory, but the portion occupied for the other purposes is in contradistinction to the portion occupied for factory purposes, and the question is - Which is primarily or most occupied? In other words, the whole hereditament is being considered, for upon that whole the relief would necessarily be calculated, in order to see whether it is used and occupied primarily or mainly for non-factory purposes, in which case the privilege is not accorded.
"The truth is that 'for the purposes of might perfectly well be expressed by the one little word 'as'. All this has nothing to do and could have nothing to do with the product of the factory itself. That is, of course, quite apparent in the earlier sentences. No factory makes dwelling-houses, retail or wholesale shops, or storage. But the Court of Appeal has gone on the terms of the last sentence (f) 'any other purposes which are not those of a factory or workshop'. To my mind the use of this sub-section is clear. The earlier ones do describe various uses to which the parts of the area not actually used by the factory might be put. Then comes this sub-division, which is put in to cover anything that might be omitted by reason of the antecedent paragraphs containing specific descriptions and includes...
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Tersons Ltd v Stevenage Development Corporation
...clear that in the ordinary case the arbitrator must not set out evidence; he must merely state his conclusion of fact; see East Yorkshire Motor Services v. Clayton (1961 volume 1 Weekly Law Reports, page 1454); and even where the question arises whether there is evidence in support of the a......