The Lord Mayor and Citizens of the City of Westminster v Hailbury Investments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHEN BROWN |
| Judgment Date | 13 December 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1213-7 |
| Docket Number | 84/1033 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 1984 |
[1984] EWCA Civ J1213-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Lord Justice Eveleigh
Lord Justice Stephen Brown
Sir David Cairns
84/1033
MR M.A.B. BURKE-GAFFNEY, Q.C., and MR C.D. NEWBERRY, instructed by Mr T.F. Neville, City Solicitor, Westminster City Hall, appeared for the Appellants (Respondents).
MR. C.S. FAY, instructed by Messrs. Asher Fishman & Co., appeared for the Respondents (Appellants).
This is the judgment of the court.
The Westminster City Council is the rating authority for a large area of Central London. It appeals to this Court from the Order of Mr. Justice Woolf of 1st December 1983 allowing an Appeal by way of case stated by the respondent ratepayer from the adjudication of Mr. Edmund Geoffrey MacDermott a Metropolitan Stipendiary Magistrate of 11th March 1982. The Magistrate had heard four complaints preferred by the Westminster City Council as rating authority against the ratepayer alleging that being a person duly rated and assessed in certain sums it had not paid the same. He ordered that warrants to make distress of the sale of goods and chattels of the ratepayer should be issued to enforce the payment of certain sums alleged to be due in respect of unoccupied hereditaments at Albert Court, Prince Consort Road SW7.
The Appeal involves consideration of certain statutory provisions contained in Schedule 1 to the General Rate Act 1967 relating to unoccupied hereditaments. Section 17 subsection 1 of the General Rate Act 1967 provides: "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."
By Schedule 1, paragraph 1(i) it is provided: "Where, in the case of any rating area in which, by virtue of a resolution under section 17 of this Act, this Schedule is in operation, any relevant hereditament in that area is unoccupied for a continuous period exceeding three months, the owner shall, subject to the provisions of this Schedule, be rated in respect of that hereditament for any relevant period of vacancy; and the provisions of this Act shall apply accordingly as if the hereditament were occupied during that relevant period of vacancy by the owner". Certain exceptions however are created by paragraph 2 of the Schedule of which those contained in sub-paragraphs (a) and (b) are relevant in considering the present appeal. Paragraph 2 provides: "No rates shall be payable under paragraph 1 of this Schedule in respect of a hereditament for, or for any part of the three months beginning with the day following the end of, any period during which—(a) the owner is prohibited by law from occupying the hereditament or allowing it to be occupied; (b) the hereditament is kept vacant by reason of action taken by or on behalf of the Crown or any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it." The complaints which came before the Magistrate related to four hereditaments entered in the Valuation list for the City of Westminster. The Magistrate found them to be as follows:
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(1) Description: Ground and first floor offices.
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Address: 6 Albert Court
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Rateable Value: £5,013
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(2) Description: Offices and premises ground floor (front).
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Address: 57 Albert Court
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Rateable Value: £2,555
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(3) Description: Basement and ground floor offices and Caretaker's flat.
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Address: 58–60 Albert Court
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Rateable Value: £17,597
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(4) Description: Offices, basement.
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Address: 63 Albert Court
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Rateable Value: £1,347.
He further found in paragraph 8 of the Case at page 28 of the bundle of documents before this Court that at all material times each of the said hereditaments was unoccupied; that Hailbury Investments Limited, the Respondents to this appeal, were at all relevant times the owners of each of the hereditaments aforesaid, being entitled to possession thereof; that the appellants in this appeal were the rating authority for the City of Westminster and had demanded of the Respondents the respective sums specified in each of the complaints; that the Respondents to this appeal did not pay any of the sums so demanded within seven days after the respective demand in each case, and that the rating authority claimed to rate each of the said hereditaments pursuant to Section 17 and Schedule 1 of the General Rate Act of 1967. Each of the sums claimed in respect of each of the said hereditaments was calculated by the rating authority by applying to the Rateable Value a multiplier which was higher than that applicable to residential flats and other domestic property.
Numbers 58, 59, 60 and 61 Albert Court had been used as Offices for many years prior to 25th December 1972 pursuant to a series of Planning Permissions authorising such use for limited periods. The last of these Permissions dated 27th November 1961 was subject to the following condition: "The limited period for the continuation of the use hereby permitted shall be until 25th December 1972 on or before the expiration of which period the use shall be discontinued or determined." By a Notice dated 15th November 1973 permission was refused for the continued use of Numbers 58 to 61 Albert Court as offices. On 4th March 1976 a Certificate of Established Use within the meaning of Section 94 of the Town and Country Planning Act 1971 was granted in respect of the use of Number 6 Albert Court as offices. On 13th July 1978 the Westminster City Council as Local Planning Authority granted Planning Permission to the Respondents in pursuance of their application dated 10th January 1978 for the use of flats 60 and 61 Albert Court as offices, the use of flat 63A for residential purposes and the conversion of flats 57, 58 and 59 to provide three self-contained residential units. The permission was subject to the following conditions: (1) Prior to the commencement of the office use hereby approved for flats 60 and 61 any existing office use in flats 3A, 6 and 63 shall cease permanently and these flats shall be made ready for occupation as residential premises. (2) Prior to the commencement of the office use hereby approved for flats 60 and 61 the unauthorised office use in flats 57, 58 and 59 shall cease permanently and these flats shall be made ready for residential occupation. (3) The development hereby permitted must be begun not later than five years from the date of this permission.
Before the Magistrate the ratepayer contended that it could only be rated in respect of the hereditament which satisfied the description in the valuation list; further, that the condition attached to the Planning Permission of 27th November 1961 operated to prohibit by law the occupation of the hereditament 58 to 60 Albert Court as a hereditament satisfying that description and accordingly by virtue of paragraph 2(a) of Schedule 1 to the General Rate Act 1967 no rates were payable under Section 17 Schedule 1 of the Act in respect of Numbers 58 to 60 Albert Court at any material time. It further contended that the conditions which I have recited attached to the Planning Permission of 13th July 1978 constituted action taken by or on behalf of a Local Authority with a view to prohibiting the occupation of the hereditaments concerned and that they had been kept vacant as a result.
Accordingly, the exception provided by paragraph 2(b) of Schedule 1 to the General Rate Act of 1967 was established and no rates were payable in respect of the hereditaments involved at any material time. The Magistrate did not accept those submissions and accordingly rejected the ratepayers' appeal and ordered the distress warrants to issue. He held that the Local Authority had not prohibited occupation of any of the hereditaments and that all that they had done was to restrict the nature of the occupation to that of a residential character. He stated the question for the opinion of the High Court: "whether planning restrictions which restrict the type of any future occupation of a hereditament to that of a domestic nature render the hereditament subject to the provisions of paragraphs 2(a) and 2(b) of Schedule 1 of the General Rate Act 1967." The ratepayer appealed to the High Court by way of case stated and its appeal was heard by Mr. Justice Woolf who was hearing the Crown Office list. When he gave judgment he stated the point in the following terms: "As I understand the point it can be summarised as follows: Whether premises which had previously been...
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