Post Office v Nottingham City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,LORD JUSTICE BROWNE,SIR GORDON WILLMER |
| Judgment Date | 25 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0325-5 |
| Date | 25 March 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0325-5
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Applicant from Order of His Honour Judge Heald, Nottingham County Court, dated June 17, 1975.)
Lord Justice Cairns,
Lord Justice Browne and
Sir Gordon Willmer.
MR. W.J. GLOVER, Q.C. and MR. M. HORTON, (instructed by The Solicitor to the Post Office) appeared on behalf of the Appellants (Applicants).
MR. G. RIPPON, Q.C. and MR. F. AMIES, (instructed by the Solicitor to the Nottingham City Council) appeared on behalf of the Respondents (Respondents).
I will ask Lord Justice Browne to deliver the first judgment.
This is an appeal by the Post Office from a decision of His Honour Judge Heald given at the Nottingham County Court on the 17th June, 1975. The case relates to the application to a new telephone exchange in Nottingham of the provisions as to the rating of unoccupied property which wore first introduced by the Local Government Act 1966 and are now contained in the General Rate Act 1967, which was a consolidation Act.
Section 17 of the 1967 Act provides as follows, so far as relevant: "(1) A rating authority may resolve that the provisions of Schedule 1 to this Act with respect to the rating of unoccupied property - (a) shall apply…. to their area and in that case those provisions shall come into operation …… in that area on such day as may be specified in the resolution."
On the 4th February, 1974, the Nottingham City Council passed a resolution that those provisions should apply to their area from the 1st April, 1974. Paragraph 8 (1) of Schedule 1 to the 1967 Act gives the rating authority power to servo what is described as "a completion notice"; and paragraph 8 (4) gives a right of appeal to the county court. I shall have to come back later to those provisions, and I only mention them at this stage to make the history intelligible.
In February, 1973, the Post Office started the erection of a building in Nottingham for use as a telephone exchange. This was a now exchange which was to be known as the "Crusader Exchange". The work was to be done under four contracts. First, a contract to erect the building, and this was to be done by anoutside contractor. Secondly, the electrical work, which was to be done by the Post Office's own engineers. This was electricity both for the operational purposes of the exchange and for what Mr. Glover calls the domestic purposes of the building. Thirdly, a contract for ventilation, which was to be done by an outside contractor. Fourthly, the contract for the telephone equipment itself, part of the installation of which was to be done by the post Office engineers and part by the suppliers of the equipment. Mr. Glover told us that this division of labour was arranged so that the building could be brought into operation as soon as possible.
On the 27th January, 1975, the Nottingham City Council served a completion notice in respect of this building, which appears at page 10 of the documents and is in those terms. Paragraph 1 recites the Resolution under Section 17 and the First Schedule of the General Rate Act 1967. Paragraph 2 says: "The Rating Authority is of the opinion that the work remaining to be done in the building at the corner of Thurland Street and Lincoln Street (hereinafter called 'the building') is such that the erection of the building can reasonably be expected to be completed within three months and that the building when completed will be comprised in a relevant hereditament. 3. The Rating Authority therefore servo upon you as owner of the building this completion notice stating that the erection of the building is to be treated for the purposes of the First Schedule to the General Rate Act 1967 as completed on the 28th day of February 1975." The notice then calls the attention of the person upon whom it is served to the right of appeal.
The Post Office appealed to the county court; the hearing took place on the 17th and 18th April and the 27th May, and judgment was given on the 17th June, 1975.
Mr. Amies, for the rating authority, submitted to the county court judge that he, the judge, should decide this case by putting himself in the position of the rating authority as at the 27th January, 1975, when the completion notice was given, and, I gather, decide when the building could thon reasonably have been expected to be completed. The judge rejected this approach. He said at page 7 of the documents: "The Court has to decide on the facts as it knows them and not on an assumed position which it knows to be wrong. In my opinion I have to take into account the supervening events which occurred after the 27th January 1975 and in particular the difficulties over the heating system and the tiling sub-contract which meant that for a period of almost two months the electricians wore off the site. In my opinion if I come to the conclusion that the rating authority have given a date for the building to be treated as completed, which is in fact earlier than it could be reasonably expected to be completed, thon I have to look at the matter afresh on the facts as I know them and have to determine a date which has to be treated as the date of completion." In my judgment, the judge was right in his approach; anyhow, there la no cross-appeal.
The judge found the following facts. First, at page 5 of the documents he said this: "The building is purpose built as a telephone exchange. It could doubtless be adapted to other uses with difficulty, but there are facilities incorporated in it which are only suitable for a telephone exchange. For instance there are a number of fan rooms for ventilation equipment.There is an engine room which is capable of supplying alternative electric power for the whole building, there are battery rooms and cable chambers. This is not a case of a developer not completing a building because he has no tenant to put in it. It is the very reverse. It is the desire of the Post Office to bring the building into operation as soon as possible. Everything they have done has been designed to speed that end and possibly they have laid themselves open to a liability for rates at an earlier point in time than might otherwise be the case."
Secondly, at page 6, the judge said this: "In January 1975 the building contract was coming to its end. There was a site meeting on the 27th January 1975 between the representatives of the contractor and the Post Office and the Department of the Environment, at which no representative of the rating authority was present, when It was expected that the building would be ready to be handed over very shortly and a tentative handover date of the 17th February 1975 was agreed on. However, immediately after that meeting problems with the heating system arose and it became apparent that the tiling would not be complete by the 17th February. The problem with the heating system became serious and it was clear the building could not be handed over by the contractor until those problems had been cleared up and in fact the building was not handed over until the 17th and 18th April, which strangely enough were the two days on which this case was first heard."
Thirdly, the judge found that the work then remaining to be done was as follows: (a) electric wirings (b) a transformer had to be installed - until that was done there was no permanent or satisfactory supply of electricity to the building;(c) the installation of the ventilation system; (d) the installation of the kite he a equipment; (e) the Installation of three or four partitions; and (f) the Installation of the telephone equipment it self. The judge said this about that on page 7: "Lastly, we come to the question of the telephone equipment. This is obviously very complicated and very expensive. All the cables will have to come through the main cable tunnel from the Castle Exchange and then through the main distribution frame. In the building there are going to be a number of different aspects of telephone work. The exchange is being built to cover future expansion as well, so it may be 10 or 15 years before the space is fully utilised. It is intended that the Repair Service Centre (RSC) should be transferred to the building from the Castle Exchange in February 1976. It is intended that the Directory Enquiry facilities should be moved to the exchange from the Castle Exchange and other outside accommodation in June/July 1976 and it is intended that automatic telephone equipment should be installed in the exchange in June 1977. If these dates are achieved the Post Office is to be congratulated on the speed at which it gets the new exchange equipped.
The judge's conclusion appears at page 8 of the documents. He sots out the argument of Mr. Horton, and thon says: "It may be that the draughtsman did not intend to bring about the situation which has arisen in this case, but I have come to the conclusion that when the building is completed it will be comprised in a relevant hereditament, albeit only a technical one, and therefore it is within the Schedule and rateable. In effect I prefer Mr. Amies' more literal approach. I take theview that I have to decide what time is reasonably required to complete the building, or perhaps more accurately is required to complete the work remaining to be done which is customarily done in the case of the Post Office after the building has been substantially completed. I take into account the completion of the electrical wiring which will take 2 to 3 months. I take into account the supply of the transformer, because until that transformer is supplied there will be no permanent supply of electricity and there will not be sufficient power for instance to work the lifts and other electrical appliances at the same time,...
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