Hampton (Dick) (Earth Moving) Ltd v Lewis
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE ORMROD |
| Judgment Date | 09 June 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0609-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 1975 |
[1975] EWCA Civ J0609-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of the Valuation Officers from decisions of the Lands Tribunal.
The Master of the Rolls (Lord Denning),
Lord Justice Roskill and
Lord Justice Ormrod.
Mr. ALAN FLETCHER (instructed by the Solicitor of Inland Revenue) appeared on behalf of the two Valuation Officers.
Mr. D. M. TRUSTRAM EVE, Q. C., and Mr. C. S. FAY (instructed by Messrs Lovell White and King) appeared on behalf of Dick Hampton (Earth Moving) Limited; and (instructed by Messrs. Hill Dickinson & Co. of Liverpool) on behalf of United Gravel Co. Limited.
When contractors build a motorway, they dig cuttings through the hills and build up embankments across the valleys. They use the soil from the cuttings to make up the embankments. But there is often not enough soil from the cuttings. So they have to get more from near-by land. They do it with huge diggers and earth-movers. They call this adjoining land a "Borrow-pit", that is, a pit from which they borrow the extra soil needed to make the motor-way. These borrow-pits are outside the line of the motor-way itself. They do not form part of the land which is compulsorily acquired for the motor-way. In order to get the borrow-pits, the contractors will themselves make their own private arrangements with the adjoining owners. They may buy the adjoining land or pay the owner for the right to extract the soil. They got these borrow-pits as close as possible to the motor-ways so that the big machines can move the soil quickly and directly to the embankment without going along the public highway.
We are here concerned with two borrow-pits. One of them is in Wiltshire. In 1970 the M.4 motor-way was being built there. The contractors were McAlpines. They found an area of farm land which contained limestone suitable as "fill". They bought the land through an associated company, the United Gravel Co. Limited. This "borrow-pit" was separated by a few yards from the motor-way. They installed plant on it to crush the limestone and moved it by a conveyor belt into a hopper on the motor-way site. They worked it in enormous quantities and at a fast pace. In six months, out of 7 acres, they moved 310,891 tons of "fill". In Gloucestershire and Wiltshire most quarries produce less than 100,000 tons in a whole year.
The Valuation Court held that the "borrow-pit" was in the rateable occupation of the United Gravel Co. and assessed it at£;8,000 rateable value.
The other "borrow-pit" is in County Durham. In 1967 the Durham motorway was being built. The contractors employed subcontractors for moving the earth. They were Dick Hampton (Earth Moving) Limited. They found an area of limestone immediately adjoining the motorway. The sub-contractors made arrangements with the limestone company by which they were permitted to dig out limestone, paying a price per cubic yard. They worked it at a tremendous pace. In 9 months from 10 acres they took out 700,000 tons. In doing it they completely obliterated the boundary with the motorway. The borrow-pit and the motorway were just one big excavation with nothing to show on the ground between them. The sub-contractors, for those 9 months, occupied the borrow-pit and motorway together as one.
The Valuation Court held that the borrow-pit was in the rateable occupation of Dick Hampton and assessed it at £;13,000 rateable value.
On appeal, the Lands Tribunal held that the borrow-pits were not rateable at all; and the Valuation Officer appeals to this Court.
1. Was the occupation too transient?
In giving their decision, the Lands Tribunal said: "There is no doubt that one of the ingredients of rateable occupation is that the occupation shall not be too transient…. In relation to temporary structures the Courts seem to have accepted as a general working rule that occupation for a year or more is not too transient and the implication has been that if it has been for less than a year, it is too transient…. These borrow-pits are closely comparable to temporary structures like building huts. Applying the working rule, the occupation was too transient to constitute rateable occupation and we hold this as matter of fact".
It has often been stated that one of the necessary ingredients of rateable occupation is that "'possession must not be for too transient a period", see John Laing's case (1949) 1 K. B. at page 350; London County Council v. Wilkins (1955) 2 Q. B. at page 672; and in relation to builders' huts, that 12 months is the working rule. More than 12 months, there is rateable occupation: less than 12 months, no rateable occupation: see McAlpine v. Payne (1967) 15 Ryde 240.
It is, I think, a mistake to elevate this ingredient into a principle of law or to construct out of it any working rule. It started with an observation made 100 years ago by Mr. Justice Lush in The Queen v. St. Pancras Assessment Committee (1877) 2 Q. B. D. at page 589. That case concerned an advertisement hoarding put up as a temporary structure. Mr. Justice Lush compared it to an itinerant showman who puts up roundabouts or swings. He said:
"Thus a transient, temporary holding of land is not enough to make the holding rateable. It must be an occupation which has in it the character of permanence; a holding as a settler and not as a wayfarer".
It is out of those few words that this so-called necessary ingredient has sprung. But it is to be noticed that in the only case in the House of Lords, L. C. C. v. Wilkims (1957) A. C. 362, there is nothing to support it. Lord Tucker only said (at page 387) that there must be a sufficient degree of "permanence" to attract rateable value; and he put "permanence" in inverted commas.
Looking at the matter afresh, I can well see that, when you are considering temporary structures, it would not be right to hold it rateable unless there is something permanent about it. A holidaymaker who pitches his tent in a field for a fortnight is not inrateable occupation. Nor is the showman who puts his roundabout or swings for the fair. But a man who occupies a bookstall or kiosk regularly for his business is rateable. As Lord Russell of Killowen said in Westminster Council v. Southern Railway Co. (1936) A. C. 511 at page 529, when dealing with bookstalls and kiosks at Victoria Station:-
"Rateable occupation however, must involve actual possession, and it must have some degree of permanence: a mere temporary holding of land will not constitute rateable occupation".
I do not think that those cases about temporary structures have any application at all to these borrow-pits. If some degree of "permanence" is necessary, these borrow-pits are as permanent as anything could be. The landscape has been changed for ever. Huge slices have been dug out of the hillside. They have left gaping voids which will never be filled up. They are far more permanent than the most massive of buildings. It has all been done in a few months. But I cannot believe that that is a ground for exemption from rates. It cannot depend on how many machines the contractors have available; or whether they do it in 11 months or in 13 months. I cannot accept the supposed "working rule" of 12 months. No matter whether the extraction only takes 6 months or 9 months, they are in the rateable occupation of the contractors.
I see no difference between these "borrow-pits" or quarries. In R. v. Westbrook (1847) 10 Q. B. at page 207, Lord Denman, Chief Justice, took the case of a brickfield worked out in less than a year to meet some enormous contract for a public work. He clearly thought it was rateable, the value being assessed according to the output, see Gilbard (Valuation Officer) v. Amey Roadstone Corporation Limited. (1974) Rating Appeals 498.So here I hold these borrow-pits to be rateable.
II. Separability
Another point was taken by the contractors. They said that the motorway itself was not rateable. So also the borrow-pits ought not to be. In Arbuckle Smith & Co. Limited. v. Greenock Corporation (1960) A. C. 813, the House of Lords had to consider whether a warehouse was rateable. It was empty but was being extensively altered so as to qualify as a bonded warehouse. The House held that the making of alterations did not constitute rateable occupation. So applying that case, it is said that the contractors were not in rateable occupation of the site of the motorway itself. This was accepted by Mr. Fletcher for the valuation officer.
The contractors said that if they are not in occupation of the site of the motorway, it follows that they are not in occupation of the site of the borrow-pit. At any rate, not in the case from Durham when Dick Hampton were the contractors: because it is all one big site. The argument went in this way: looking at it, no one could say, "This is the boundary of the borrow-pit: this is the boundary of the motorway". It is all one. The diggers and earth-movers cross it as one. So that there is but one occupation of the whole. If the motorway is not rateable occupation; neither is the borrow-pit.
This argument has a superficial attraction. The two sites are used so much as one that they might in the ordinary way be regarded as a single hereditament for rating purposes. But the authorities show that there are exceptional cases where an apparently single site may be treated as two or more hereditaments, see Gilbert v. Hickinbottom (1956) 2 Q. B. at page 48. This is I think an exceptional, case. The contractors occupy the two sites in twodifferent capacities. They occupy the site of the motorway in their capacity as contractors doing the work of constructing the motorway, and therefore exempt...
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