Wimborne District Council v Brayne Construction Company Ltd and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE FOX,SIR GEORGE WALLER |
| Judgment Date | 31 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0731-12 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1985 |
| Docket Number | 85/0502 |
[1985] EWCA Civ J0731-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT FINAL LIST)
(MR JUSTICE GLIDEWELL)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Lloyd
Sir George Waller
85/0502
QBDF 61/84
and
MR WILLIAM GLOVER, Q.C., and MR M. DINEEN (instructed by Messrs. Sharpe Pritchard & Co.) appeared on behalf of the Appellants.
MR R. BEECROFT (instructed by Messrs. Allin & Watts) appeared on behalf of the Respondents (2nd Defendants).
This is an appeal from a judgment of Glidewell J., dismissing an appeal from a decision of Judge Michael King, sitting at Bournemouth Crown Court. The question for our consideration is whether a firm of contractors, W.H. White & Co. Ltd., were in rateable occupation of a hereditament described in the valuation proposal as "sand and gravel pit and premises" at Sturminster Marshall, Wimborne, Dorset.
The matter comes before us in the form of a Case Stated by the Crown Court setting out the facts agreed between the parties, together with the facts found by the Crown Court. I can describe the background very briefly.
Dorset Fish Farms Ltd. own a fish farm in Dorset known as Bailey Gate Fish Farm. They wished to extend the fish farm to an adjoining property. Accordingly in the summer of 1980 they entered into a contract with Brayne Construction Co. Ltd., a firm of civil engineering and public works contractors, to excavate a number of lakes and ponds, and carry out associated landscaping work over an area of about 26 acres, in accordance with a plan which is annexed to the Case. Brayne Construction Co. Ltd. sub-let the excavation work to W.H. White & Co. Ltd.
The contract between Dorset Fish Parms and Brayne Construction is contained in a letter dated 22nd September 1980. It was a term of the contract that Brayne Construction would provide the funds for the purchase of the land.
In return, Brayne Construction were to have the right to dispose of the material arising from the excavation, less a royalty of £45,000.
The contract between Brayne Construction and White is contained in two letters from Brayne Construction to White dated 28th August and 23rd September 1980, and a reply dated 23rd September 1980. It was a term of the sub-contract that White would pay Brayne Construction £1 per ton for all material recovered. It was estimated that the total quantity of "suitable material" would be 250,000 tons.
Thus, as frequently happens where there is gravel to be extracted, the excavator paid for the privilege. The total payment in the present case was estimated to amount to £250,000. In addition, White was to be given first refusal on any future excavation in the Sturminster Marshall area.
The learned Judge in the Crown Court directed himself in accordance with the classic judgment of Tucker L.J. in Laing & Son Ltd. v. Kingswood Area Assessment Committee (1949) I K.B. 344. For convenience, I set out the passage in full:
"First, there must be actual occupation; secondly that it must be exclusive for the particular purposes of the possessor; thirdly that the possession must be of some value or benefit to the possessor; and fourthly the possession must not be for too transient a period".
Judge King held that neither Brayne Construction nor White was in occupation of the hereditament. So the first requirement for rateable occupation was not fulfilled. In the course of his judgment he said:
"…(White) were not in actual occupation because the acts of excavating were not acts of occupation, but as those of a builder employed to repair a house".
Glidewell J. dismissed the appeal. He was, I think, inclined to hold that White was in occupation of the hereditament; but he decided in favour of White on the ground that any occupation by White was not exclusive. Thus, though the first requirement for rateable occupation may have been fulfilled, the second was not.
I approach the case, like Glidewell J., by taking each of the requirements in turn. To some extent the first two requirements overlap. The starting point in respect of both requirements must be the findings of fact in paragraph 4 of the Case, and in particular the findings in paragraph 4(ii) as follows:
"The paramount purpose of the second respondent's occupation was to create lakes and ponds for a fish farm and not to work a gravel mine. An ancillary advantage was to take gravel".
Judge King explained his reasons for reaching that finding of fact in his judgment:
"It is quite clear to me and I believe that it is implicitly accepted by all parties that the first appellant is not in exclusive or actual occupation of the hereditament. So far as the second appellant is concerned it was submitted that the paramount purpose was to fulfil the burden of the contract entered into by the first appellant with the Dorset Fish Farms. We find as a fact that the paramount purpose of occupation was to excavate for the purpose of providing lakes and ponds for the fish farm and it was an ancillary advantage that gravel was to be extracted. We emphasise that the purpose of the operation was to provide lakes and ponds for fish farming. This is illustrated by the supervision which is exercised by the first appellant and the requirements which were indicated to the second appellant by the first appellant in the form in which the ponds were to be laid out etc. It is specifically specified in the original agreement recorded in the letter of 28th August 1980 that the offer was to sublet 'the excavation works'. It was not a contract to win and mine gravel. Indeed, sufficient topsoil was to be retained to enable landscaping to be carried out, and the second appellants were to be responsible for the total excavation. The provision as to payment was part of that contract. The second appellants moreover agreed to complete the excavations by 31st January 1981. It is in our view quite clear that the whole tenor and purpose of the contract was not one enabling the second appellants to win gravel or granting them the sole right to win gravel, but to carry out and complete the necessary excavations for the provision of a fish farm".
Mr Beecroft, who appeared for White, submitted that the finding of fact in paragraph 4(ii) of the Case is, to all intents and purposes, conclusive in his favour. Mr Glover, on the other hand, invited us to say that it is not in truth a finding of fact at all, but an inference; if it is a finding of fact, then the finding is perverse.
For my part I would be reluctant to characterise any finding of fact in the somewhat artificial field of rateable occupation as perverse, especially after a hearing lasting four days. Judge King was understandably influenced by Cobley (Valuation Officer) v. Horlock Dredging Co. Ltd., (1972) 18 R.R.C. 337, and Andrews v. Hereford Rural District Council (1963) 10 R.R.C. 1, decisions which he described as being difficult if not impossible to distinguish on their facts. (In parenthesis I would comment that the Judge's approach is a good illustration of the danger, tempting though it always is, of comparing one case with another on the facts; for to my mind Andrews, at any rate, is clearly distinguishable, since in that case, unlike the present, the right to take gravel was not exclusive). Be that as it may, I would not go along with Mr Glover's suggestion that the finding in paragraph 4(ii) is perverse.
Yet it does require close attention. In the first place there is a certain ambiguity in referring to "the paramount purpose of (White's) occupation". This suggests that White was indeed in occupation, but for two different purposes, one paramount to the other. The ambiguity is not resolved by referring to the judgment, for there the question which the Judge posed was as follows:
"Did (White) have exclusive occupation to work the site as a gravel mine, or was there paramount occupation to work the site as excavations for fish farming lakes and ponds under the direction and supervision of (Brayne Construction Co)?"
Like Glidewell J., I doubt if this is the correct way of putting the question. "Paramount occupation" is an expression normally found in rating law where there are two different occupiers, not one occupier with two different purposes.
Secondly the reference to the "ancillary advantage" of taking the gravel in contrast to the "paramount purpose" of creating lakes and ponds shows that Judge King may have been using "paramount purpose" in a rather special sense. Glidewell J. interpreted the finding as follows:
"I read that as meaning—indeed it can only mean in my view—that the Court was finding that White had two purposes in excavating the gravel; a primary purpose and a secondary purpose, the latter being taking the gravel in order to make a profit by disposing of it. If that is right it cannot be said, in my view, that the Court has found that the land is being used solely in connection with fish farming".
When Mr Beecroft was asked to comment on that passage, he did not dissent. He accepted Glidewell J's analysis. It was sufficient, he said, for his case that White's primary purpose was the creation of the fish farm. So I approach the finding in paragraph 4(ii) in the same way as Glidewell J., namely, that White had two purposes in excavating the gravel. The primary purpose was to create lakes and ponds, as found by the Crown Court. The secondary purpose was to take the gravel.
Moreover, one has to be wary in this context, as in almost every other context, of the...
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