Glasgow Corporation v Johnstone
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Evershed,Lord Hodson,Lord Guest,Lord Wilberforce |
| Judgment Date | 03 February 1965 |
| Judgment citation (vLex) | [1965] UKHL J0203-2 |
| Court | House of Lords |
[1965] UKHL J0203-2
House of Lords
Lord Reid
Lord Evershed
Lord Hodson
Lord Guest
Lord Wilberforce
Upon Report from the Appellate Committee, to whom was referred the Cause Corporation of City of Glasgow against Johnstone and others (Congregational Board of Belhaven-Westbourne Church, Glasgow), that the Committee had heard Counsel, as well on Monday the 23d as on Tuesday the 24th, days of November last, upon the Petition and Appeal of the Corporation of the City of Glasgow, City Chambers, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 26th of February 1964, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Reverend David Johnstone, M.C., B.D. (Minister of Belhaven-Westbourne Church, Glasgow), Gordon Frew and J. S. Riddell (Clerks to Congregational Board), Alexander Baxter, J. Mouland Begbie, Andrew Buchanan, James Curdie, A. Oswald Drysdale, A. B. Gilmour, T. M. Henderson, Dr. John B. Hurll, John Donald Kelly, Craig Kilgour, J. W. Lamb, Hugh McColl, A. R. McFadyen, W. L. McHarg, Bryce Mackend, Dr. William B. McKenna, Alan H. MacKenzie, J. H. F. Macpherson, John T. Massey, Thomas Murray, William R. Ovens, S. W. Nicoll, G. W. Lennox Paterson, Dr. Maurice W. Paterson, J. F. Sanderson, Thomas Sharp, K. Muir Simpson, A. Forrest Smith, Brigadier J. W. Vanreenen, J. C. Waters, John F. Welsh, Dr. J. Wilson, Richard A. Wilson, Norman J. S. Wright, Edward M. Young, J. Cowie, Mrs. J. Craig, Miss Grace Ewing, Mrs. Keir Fisher, J. C. Fulton, Miss Marion A. Hood, Miss Helen MacKenzie, Dr. C. J. Mackinlay, Mrs. C. J. Mackinlay, W. Mackinlay, G. Mackintosh, Mrs. J. N. F. Macpherson, Mrs. John T. Massey, Mrs. A. Murdoch, Dr. L. R. Parker, Miss M. H. Rodgers, James Stirrat, Mrs. M. Towart, Robertson Towart, Mrs. P. T. Young, Dr. Kenneth Fraser, J. S. A. Primrose, Jr., and Mrs. J. S. Riddell (Congregational Board of the said Belhaven-Westbourne Church, Glasgow), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor, of the 26th day of February 1964, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The Respondents, the Congregational Board of the Belhaven-Westbourne Church in Glasgow, own a house in which their Church Officer resides. They have raised this action against the Appellants, who are the rating authority for Glasgow, concluding for a declarator that the rate leviable in respect of the house shall not exceed one-half of the rate which would be leviable apart from the provisions of section 4 (2) of the Local Government (Financial Provisions etc.) (Scotland) Act 1962. That subsection provides:
"(2) If notice in writing is given to the rating authority not later than the thirtieth day of June in any year that any lands and heritages—
( a) are occupied by, or by trustees for, a charity and are wholly or mainly used for charitable purposes (whether of that charity or of that and other charities); or
( b) are held on trust for use as an almshouse,
then, subject to the provisions of this section, any rate leviable in respect of the lands and heritages for any period, beginning not earlier than the year in which the notice is given, during which the lands and heritages are within the categories described in either paragraph ( a) or paragraph ( b) of this subsection, shall not exceed one-half of the rate which would be leviable apart from the provisions of this subsection."
The relevant facts are not in dispute. The house and church are parts of a single building, the only access to the house being through the church premises. The terms of appointment and duties of the Church Officer are elaborately set out in a document made when the Church Officer was appointed. He is a full time servant of the Respondents. He makes the necessary preparations for and attends all services. He is responsible for checking collections and lodging the money in the bank. He does all the cleaning with the assistance of his wife and attends to the heating system. And he must perform any duties in connection with the Church which the Minister may instruct him to do. It is further provided that in addition to his salary "he shall be given free of rent and rates the occupancy of the house attached to the Church and also all fire and light requisite to such house. He shall be bound to occupy the said house with his wife during the employment and shall be bound to vacate it on termination of the employment".
It is not disputed that this requirement of residence is a reasonable requirement or that the fact that the Church Officer resides in this house is an advantage to the Church in carrying on its various activities. But the Appellants maintain that it is not necessary for the carrying on of these activities or for the security of the premises that he should reside there, and I am willing to assume that if he resided a short distance away he could perform all his duties though with some loss of efficiency. So if necessity were the criterion the appeal would succeed. But if it is sufficient for the Respondents to shew that their servant is bound to reside there, and that his residing there is of material assistance to them in the carrying out of their activities then the Appellants must fail on this point.
It is not disputed that the Respondents are a charity within the meaning of this section. But two separate questions arise for decision—first, whether the house is "occupied" by the Respondents or by their servant, and secondly, if it is occupied by the Respondents, whether it is "wholly or mainly used for charitable purposes". The question whether the master or the servant is for rating purposes the occupier of a house in which the servant is bound to reside is one on which there is little authority in Scotland. But there is a body of authority on which of them is occupier for Income Tax purposes, and there is a body of authority in England on the question whether or not the servant was occupier or "tenant" when that was a qualification for a vote. The Appellants found on these authorities as relevant in a rating matter. They appear always to have been treated as relevant and I see no reason to question that practice.
Of the latter class I find it unnecessary to cite more than two cases. In Fox v. Dalby 10 C.P. 285 a sergeant was required by his commanding officer to reside in a particular house and he was held not to qualify. Lord Coleridge C.J. quoted from a judgment of Tindal C.J. in an earlier case—"we drew the distinction between those cases where officers or servants in the employment of government are permitted to occupy a house belonging to the Government, as part remuneration for the services to be performed, and those in which the places of residence are selected by the Government, and the officers or servants are required to occupy them, with a view to the more efficient performance of the duties or services imposed upon them". And Brett J. said, having cited the earlier cases—"The result of those three cases seems to be this, that, where a person situate like the respondent is permitted (allowed if so minded) to occupy premises by way of reward for his services, or as part payment, the occupation is that of tenant: but that, where he is required to occupy them for the better performance of his duties, though his residence there is not necessary for that purpose, or, if his residence there be necessary for the performance of his duties though not specifically required, his occupation is not that of tenant". The Appellants found on some observations more favourable to them in Smith v. Overseers of Seghill L.R. 10 Q.B. 422. There a collier was held to be a tenant and Mellor J. said:
"Those cases establish the principles by which we must be governed. Where the occupation is necessary for the performance of services and the occupier is required to reside in the house in order to perform those services the occupation being strictly ancillary to the performance of the duties which the occupier has to perform the occupation is that of a servant … The residence must be ancillary and necessary to the performance of the servant's duties and unless he is required for that purpose to reside in the house and not merely as an arbitrary regulation on the part of the master I do not think he is prevented from occupying as a tenant".
Mellor J. did not refer to Fox v. Dalby which had been cited in argument, but Lush J. referred to it with approval and Quain...
To continue reading
Request your trial
-
Ramakrishna Mission v Comptroller of Property Tax and Another
...purposes not themselves charitable will bring such portion within the exemption if, to adopt the words used in Glasgow Corpn v Johnstone [1965] AC 609 such use is ` wholly ancillary to the charitable purpose of the hospital` and if the use is ` directly to facilitate the carrying out of its......
-
Wheat v E. Lacon & Company Ltd
...or servants are required to occupy them, with a view to the more efficient performance of the duties imposed upon them." 42In Glasgow Corporation v. Johnstone [1965] 2 W.L.R. 657, where it was held that a house occupied by a church officer was occupied by a charity and so not liable for fu......
-
Langley v Appleby
...Jones(6) and Fox v.Dalby(7). Finally, I come to two modern decisions of the House of Lords. The first is Glasgow Corporation v. Johnstone [1965] AC 609. That case was an action brought against a rating authority by the congregational board of a church for a declaration that the rates leviab......
- Skittrall v South Hams District Council