Oswestry Corporation v Hudd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS |
| Judgment Date | 20 December 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J1220-1 |
| Court | Court of Appeal |
| Date | 20 December 1965 |
[1965] EWCA Civ J1220-1
In The Supreme Court of Judicature
Court of Appeal
(From: The Lands Tribunal)
Lord Justice Sellers
Lord Justice Russlel and
Lord Justice Salmon
Mr. A. J. IRVINE. Q. C., Mr. WILLIAM J. GLOVER and Mr. A. J. TQWNSEND instructed by Solicitor of Inland Revenue) appeared on behalf of the Appellant Valuation Officer.
Mr. DAVID WIDDICOMBE. Q. C. and Mr. MICHAEL FITZGERALD (instructed by Meesrs. Eland Hore Patersons, Agents for Messrs. Longueville & Co., Oswestry) appeared on behalf of the Respondent Corporation.
Lord Justice Salmon regrets that he cannot he present. He asks me to say that he has read and agrees with both of the judgments now to be delivered.
The Court has been asked to express its opinion on the procedure which was adopted in bringing before the Lands Tribunal the questions which have arisen in this case. There were in form two appeals before the Tribunal and that has resulted in two appeals before this Court.
In substance only one question, was in dispute between the parties, namely whether, as the Valuation Officer alleged, certain market tolls should be taken into consideration in assessing the rateability of the Cattle Market owned and conducted by the Oswestry Corporation and described in the valuation list as "Auction Yard Attested Ring and Premises Oswestry Smithfield English Walls Oswestry".
After hearing the parties on this question the Local Valuation Court on the 27th September, 1965, made what was in effect, and it would seem was intended to be, an interim decision in favour of the Valuation Officer on these terms: "Application granted subject to agreement on value".
That provisional or interim decision was issued on the form provided for a final decision, which was endorsed with this note: "Any person who appeared or was represented at the hearing of the appeal by the court and is aggrieved by the court's decision may, within twenty-one days from the date of the decision, appeal by notice in writing to the Lands Tribunal. Notice of Appeal in the form prescribed by the Lands Tribunal Rules, 1949, should be sent to the Registrar, The Lands Tribunal, 24 Abingdon Street, London, S. W. I".
The Corporation accordingly on the 14th October, 1963, gave Notice of Appeal and the respondent the Valuation Officer on the 20th November gave notice of intention to appear and stated the grounds on which he intended to rely.
When later the respondent's case was taken over by the Solicitor to the Inland Revenue he took the point that there was no decision and there was therefore no appeal. The Registrar allowed the appeal to be entered, leaving the question to be dealt with at the hearing. Before that took place the parties agreed figures on the basis of the Local Valuation Court's decision. The case was relisted and the parties went back to that Court, which then made a final order on the 14th January, 1964, that the rateable value should be £1,850, the figure agreed between the parties. A second Notice of Appeal by the Oswestry Corporation was given and both appeals came on for hearing together.
There is much to be said for ascertaining finally the basis on which the assessment has to be made before agreeing a figure which will vary according to the principle to be applied and perhaps that is why the Local Valuation Court used the form applicable to a final decision so as to permit an immediate appeal on the principle. If the Inland Revenue's point is a good the then the form was inappropriate and the interim decision should have been otherwise intimated to the parties.
As the decision clearly in its terms was not a final Incision on the entry to be made in the Valuation List I do not think would have been open to the Inland Revenue to have said that the second Notice of Appeal was out of time on the issue of 'Remarket tolls. Certainly the Inland Revenue would not have such point. In fact their point was just to the contrary, as the correspondence shows. The provisions for anappeal from the Local Valuation Court are statutory and are to be found in the Local Government Act, 1948, section 48(4) and section 49 substituting the Lands Tribunal for the County Court. Unless and until provision is made to meet the situation which arose here the Act should be applied and an appeal lies only from the final decision directing the entry in the Valuation list.
Following this preliminary point the parties continued the appeals and the second appeal now calls for consideration.
The issue is whether the tolls received by the Oswestry Corporation from those who use the market are to be taken into consideration in arriving at the assessment of the Smithfield Market for cattle. The Inland Revenue allege that the Corporation are the occupiers of the land of the market and that the said tolls would not be received by them without such occupation.
There is a long history of the right to make and collect tolls both at Oswestry and elsewhere and there has been much litigation concerning their nature and whether they are of such a character that they are to be taken into account in the valuation of a market in respect of the use of which they are levied.
It is convenient to start with a consideration of two authorities which the Inland Revenue have challenged and which they assert were wrongly decided and should be overruled. The two cases came before the same judges, Chief Justice Cockburn, Mr. Justice Blackburn and Mr. Justice Lush, in the second half of last century: The Mayor of London v. Overseers of St. Seuulchre. london, in May, 1871, reported on page 333 immediately following the report of The Queen v. Casswell, decided in January, 1872 (Law Reports 7 Queen's Bench Cases, page 328).
Mr. Justice Lush succinctly put the issue in Casswell. "The question is whether these 'cattle market tolls' are a payment for the use of the market only, or for the use of the soil". The learned judge agreed with the other members of the Court that they were the former. Chief Justice Cockburn said: "I am of opinion that this toll, payable for the admission of cattle into the market, is not properly the subject of a rate. The distinction between market tolls and stallage has been long taken and established; though it is, in my opinion, to be regretted; for a man, who occupies the soil of a market with the occupation enhanced in value by reason of this toll, ought to be assessed to the rates and contribute to the public local burthens in proportion to the value of his occupation. But we must abide by the distinction founded on this principle of ancient law, and take it as established that tolls payable merely as market tolls for the use of the market are not rateable, whereas the toll paid for the use of a stall which occupies the soil is rateable. The present toll is payable, not for the use of any shed or other thing erected or maintained upon the soil, hut independently of anything in the shape of stalls or sheds, simply for admission to the market place; and it is therefore a market toll, and comes within the distinction and is not rateable". Mr. Justice Blackburn agreed with that; and the Court followed the decision in the St. Sepulchre case.
It was held in both cases that the tolls taken were not paid in respect of stallage or other corporeal property within the market. They were of the same nature as tolls taken under an ancient franchise although they were taken under an Act of Parliament.
Over ninety years ago that distinguished Divisional Court, which had much experience of rating litigation, felt itself bound by long-established authority to accept the distinctionwhich had been drawn and applied in rating between market tolls stallage.
The two cases of St. Sepulchre and Casswell are illustrat-ive of the franchise toll or market toll being contrasted with toll for stallage or pickage. The cases clearly establish that "stallage tolls paid to the lord of the market for the occupation of land are rateable whilst market tolls are considered as attached to his franchise and are not rateable".
In 1881 the rating of Covent Garden Market was considered. in The Duke of Bedford v. The Overseers of St. Paul. Covent Garden, (51 Law Journal page 41), and the case is a good illusrtrationoftheland being appropriated to special purposes, potato stands, flower stands and fruit market, so that the tolls Lose out of the use of the soil and were in the nature of stallage and therefore rateable. The judgment of Mr. Justice Bowen (as he then was) lucidly summarises the state of the law had I venture to take the following rather lengthy extracts from it. "The whole point lies in section 21 of the Act. Is the effect of that section to change the toll, or whatever it may have been before, and make it a toll or sum of money payable in respect of some user of the soil beyond the mere entry into the market, which the person paying the toll would otherwise have the right to enjoy in common with the rest of the public?
"The case at common law would stand thus: The market would be a definite place created by the king's grant for the purpose of selling goods or chattels. The market, unless anything else is said in the king's grant, is free from toll. It was in the king's power to grant a reasonable toll to the lord of the market. For what? Why, in respect of the convenience he supplied for the witnessing of contracts made in the market. For, be it remembered, a market was a very important place. It was a place in which a sale changed the property not merely as between the parties, but as against all persons in the world, and a witness of a sale in market overt was of importance to the public, and to the parties concerned in the transaction. Accordingly an officer...
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