Rating — Whether occasional use of fields for point-to-point races rendered the occupier liable to be rated on the ground that the fields were ‘land used as a racecourse’ and thus to that extent excluded from the rating relief granted to agricultural land by section 26 of the General Rate Act 1967 — Two fields forming part of a large farm were used once a year for point-to-point races on Easter Monday — The racing circuit was in one of the fields (an arable field) which contained seven permanent fences — The other field (permanent pasture) was used on the day of the races for control purposes, catering, betting and parking — There were five or six races run on the day, each lasting for five or six minutes, the actual racing occupying a total of about 30 minutes — Valuation officer proposed to include the two fields in the valuation list with a rateable value of £850 as a ‘racecourse’ — Local valuation court held, on an objection, that the fields were exempt under section 26 — This ruling was reversed by the Lands Tribunal whose decision was upheld by the Court of Appeal — Occupier now appealed to the House of Lords — As a result of the decision of the Court of Appeal in Wimborne and Cranborne RDC v East Dorset Assessment Committee the only argument open to the appellant up to Court of Appeal level was that the use of the land as a racecourse was de minimis — There was, however, abundant evidence to justify the finding of the Lands Tribunal that the use was more than de minimis, such as the local importance of the meeting, the large number of spectators, the organisation and preparation for the event, the permanence of fences and rails and the financial return to the organisers (not to the appellant) — Two new arguments advanced before the House of Lords were rejected, the transience of the occupation and the suggestion that the use had to be ‘substantial’ to take it out of the definition of ‘agricultural land’ for rating relief — The appeal had therefore to be dismissed
This was an
appeal by Mr CL Loyd, of Lockinge Farm, Wantage, Oxfordshire, from the decision
of the Court of Appeal dismissing his appeal from a decision of the Lands
Tribunal (Mr VG Wellings QC), who had allowed an appeal by the valuation
officer, Mr JM Hayes, from a decision in the appellant’s favour by the local
valuation court. The Court of Appeal decision was reported at (1984) 270 EG
1185 and the Lands Tribunal decision at (1982) 264 EG 540, [1982] 2 EGLR 228.
ES Cazalet QC
and RJ Carnwath (instructed by Withers) appeared on behalf of the appellant; Alan
Fletcher QC and David Mole (instructed by the Solicitor of Inland Revenue)
represented the respondent.
In his speech,
LORD WILBERFORCE said: I have had the benefit of reading in advance the speech
to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree
with his reasons and conclusions. I venture to add a brief footnote. The
statutory words now in question are ‘Land used as a racecourse’ (General Rate
Act 1967, section 26(3)). In order for a parcel of land to become rateable under
these words, it is necessary to establish:
(i) that the land is used;
(ii) that the user is not de minimis;
(iii) that the user is as a racecourse.
It is for the
Lands Tribunal to find, as facts, whether these requirements are met in the
individual case before them. They did so find in the present case; there was
evidence on which they could so find; there is no point of law on which their
decision can be challenged. The facts were, in the case of the land at
Lockinge, very clear — a laid-out circuit with some permanent fences and rails
— an undoubted user, which could not possibly be described as de minimis.
It does not follow, and this is the only point I desire to make, that every one
of the 200 or so events of a similar character which take place each year in
different parts of England would be found to exhibit the same characteristics:
indeed, it is unlikely that they would do so. There is a broad spectrum from
quite informal occasions to a fully organised racecourse event: it is for the
rating authority and ultimately for the Lands Tribunal to place each case,
individually considered, on one or other side of the critical line. A decision
on one set of facts is never binding on another, though of course it is capable
of providing guidance.
I would dismiss
the appeal.
In his speech,
LORD BRIDGE OF HARWICH said: The Old Berkshire Hunt has held its annual
point-to-point race meeting ever since 1953 on Easter Monday on two fields
forming part of Lockinge Farm, near Wantage. The five or six races of the event
are run over a circuit which forms the perimeter of the northern and larger of
the two fields. The circuit is about a mile and a half in length and covers 13
acres of ground. It is bounded on the outside by the field boundary and for
parts of its length, on the inside, by permanent rails. There are seven
permanent steeplechase fences on the circuit; two additional temporary fences
are erected each year for the meeting. The island site enclosed by the circuit
has an area of 68 acres and is used as arable. The southern field has an area
of 52 acres. On race day, that part of the southern field nearest to the
circuit is used to provide the facilities required by Jockey Club Regulations
for the conduct of point-to-point meetings. These comprise a parade ring formed
by temporary chestnut fencing, an unsaddling enclosure, weighing and changing
tents, a secretary’s tent, and other tents, enclosures, and stand wagons used
by the officials of the meeting. In addition, there are tents where catering
and bar facilities are provided for the public; there is a totalisator tent;
and there are special areas set aside for bookmakers to set up their stands and
for competitors to park their horse boxes. The area occupied by these temporary
structures and activities specifically related to the racing is some six acres.
The balance of the southern field is used to provide a car park for visiting
spectators.
Preparation of
the southern field begins some two weeks before Easter by the erection of the
chestnut fencing for the parade ring. Car-parking areas are marked out with
tapes and cords on Palm Sunday and tents are erected on Maundy Thursday. After
the meeting, clearance of the site of all except the permanent fences and
railings on the circuit is completed by the Wednesday or Thursday in Easter
week. The use of the circuit and the southern field for the race meeting does
not impair their agricultural value as meadow or pasture land.
The meeting is
a popular event which attracts as many as 10,000 visitors, most of whom no
doubt come by car. The only charges made to spectators by the hunt are for car
parking and purchase of race
respectively.
On March 21
1978 the valuation officer made a proposal to enter the circuit and the
southern field in the rating and valuation list as a hereditament under the
description ‘Racecourse’ with a rateable value of £850. The appellant, who is
joint tenant with his partners of Lockinge Farm and also, coincidentally,
chairman of the Old Berkshire Hunt, objected to the proposal. On December 15
1980 the Oxfordshire Local Valuation Court upheld his objection on the ground
that the land in question was exempt from rating, being agricultural land as
defined by section 26(3) of the General Rate Act 1967, and that the racecourse
use was de minimis. The valuation officer’s appeal to the Lands Tribunal
was heard by Mr Victor Wellings QC who, on June 24 1982, reversed the decision
of the local valuation court. An appeal by case stated was dismissed by the
Court of Appeal (Sir John Donaldson MR, Fox and Stephen Brown LJJ) on March 22
1984: [1984] RA 41. The appellant now appeals to your lordships by leave of the
House.
Agricultural
land is exempted from rating by section 26(1) of the General Rate Act 1967. The
relevant language of the definition given by section 26(3) provides:
In this
section the expression ‘agricultural land’ — (a) means any land used as arable
meadow or pasture ground only . . . but does not include . . . land kept or
preserved mainly or exclusively for purposes of sport or recreation, or land
used as a racecourse; . . .
This language
first appeared in section 9 of the Agricultural Rates Act 1896 and has since
been repeated in successive statutes culminating in its present inclusion in
the Act of 1967.
The language,
then embodied in section 2(2) of the Rating and Valuation (Apportionment) Act
1928, was first construed judicially in 1940. A farmer allowed a 17-acre field
to be used by a motorcycle club for organised motorcycle grass-track race
meetings on two afternoons in 1937 and four afternoons in 1938. A charge of one
shilling was made for admission and attendances were around 2,000 on each
occasion. The rating authority proposed to rate the field. The assessment
committee rejected the proposal. Quarter Sessions allowed an appeal by the
rating authority. The assessment committee appealed successfully to the
Divisional Court. The decision of the court (Lord Hewart CJ, Hilbery and
Hallett JJ) is reported as Wimborne and Cranborne Rural District Council
v East Dorset Assessment Committee (1940) 56 TLR 297. It is unnecessary
to consider the reasoning in the judgment of Lord Hewart CJ, since the decision
of the Divisional Court was in its turn reversed by the Court of Appeal (MacKinnon,
Clauson and Luxmoore LJJ): [1940] 2 KB 420. The crucial paragraph in the
judgment of MacKinnon LJ, with which both other learned lords justices agreed,
reads as follows, at p 428:
I repeat that
the question propounded in the case is: ‘Whether on the facts found the
decision that this was land used as a racecourse was correct in law.’ Put otherwise, that question must be whether
the facts found afforded evidence on which the tribunal could properly find as
a fact that this field was used as a racecourse within the meaning of the
section. If the facts found showed only such casual and unimportant user, that
the legal maxim de minimis non curat lex applied, no doubt the court
ought to hold that there was no evidence on which the quarter sessions could so
find. But if the user is sufficiently substantial that the maxim de minimis
cannot apply, I do not see how this court can hold that there was no evidence
on which quarter sessions could come to the conclusion they did come to.
The ratio
decidendi of the Court of Appeal in the Wimborne case [1940] 2 KB 420
being binding on all courts below this House, the only argument open to the
present appellant up to the Court of Appeal has been that the use of the land
presently in question as a racecourse by the Old Berkshire Hunt was de
minimis. That is a question of fact, and, as in the Wimborne case,
the only basis on which the Court of Appeal could have reversed the decision of
the Lands Tribunal would have been that there was no evidence on which Mr
Wellings could find that the racecourse use here was more than de minimis.
To persuade the Court of Appeal to that conclusion was always a hopeless task
for the appellant. Having found, in a case stated, if I may say so, with
admirable clarity, the facts which I have summarised in the opening paragraphs
of this opinion, Mr Wellings stated his conclusion as follows:
The features
of this case which suggest that the maxim de minimis non curat lex ought
to be applied are the facts that racing takes place on one day in the year
only, that the owners and occupiers of the land derive no financial benefit
from the racing and that the racing does not interfere with the normal
agricultural operations which take place upon the land. In my opinion, factors
which suggest the contrary proposition are the importance locally of the event,
the large numbers of spectators who attend, the organisation and preparation
for the event, the permanence of fences and rails and the financial return
enjoyed by the organisers. In my judgment the latter group of factors prevails
and for this reason the use of the circuit as a racecourse cannot be said to be
trifling.
Save to say
that, if, which I doubt, Mr Wellings intended to treat the fact that the
tenants of Lockinge Farm did not charge the hunt for the use of the fields as a
relevant factor in the appellant’s favour, he would have erred, I cannot fault
his reasoning in any way. There was abundant evidence that the racecourse use
was more than de minimis. I am strongly inclined to the view, though it
is unnecessary so to decide, that a conclusion to the contrary effect would
itself have been open to challenge in law as perverse.
In your
Lordships’ House two arguments have been advanced for the appellant which were
not open to him below. The first was based on one of the four ingredients of
rateable occupation originally enunciated by counsel for the rating authorities
in argument in the Court of Appeal in John Laing & Son Ltd v Kingswood
Assessment Area Assessment Committee [1949] 1 KB 344 and since recognised
by your Lordships’ House in London County Council v Wilkins
[1957] AC 362. The fourth of those ingredients is that the occupation or
possession of the land must not be for too transient a period. This seems to me
to be wholly irrelevant to the construction of the words ‘land used as a
racecourse’ in the statutory definition of ‘agricultural land.’ The definition is concerned with the
liability of the land to be rated, not with the question who, if it is so
liable, is the rateable occupier. Nobody could suggest for a moment that the
Old Berkshire Hunt are rateable occupiers of the land presently in question;
but this does not help the appellant, who is.
The second
argument is that the extent to which land must be used as a racecourse, if that
use is to take it out of the definition of agricultural land, must be
‘substantial’ and that this test requires use to a significantly greater extent
than would suffice to satisfy the test of being more than de minimis. I
unhesitatingly reject this argument, not least because of the virtual
impossibility, in this context, of laying down any sensible, practical test of
what would amount to substantial user. But two still more compelling refutations
of the argument I take from the language, on which I could not hope to improve,
of Fox LJ and MacKinnon LJ giving judgment in the Court of Appeal in this case
and in the Wimborne case respectively. Fox LJ said [1984] RA 41, 45:
In the
expression ‘land used as a racecourse,’ the crucial word, for the purposes of
the present case, is ‘used’. Subsection (3) does not qualify the word by
reference to extent at all. In that respect there is a striking difference in
language between the reference to racecourses and the immediately preceding
reference to ‘land kept or preserved mainly or exclusively for purposes of
sport or recreation’. Thus the statute does not require that land be used
‘mainly or exclusively’ as a racecourse but only that it is ‘used’ for that
purpose. If it is used as a racecourse within the meaning of the statute, the
fact that it is also used for other purposes is not material. We say ‘within
the meaning of the statute’ because the user must be of such extent that the
law will take account of it. If it is so slight that the maxim de minimis
non curat lex applies to it, then the user will not be a sufficient user
for the purposes of the statute. But unless the user can be said to be de
minimis it will satisfy the statute.
MacKinnon LJ said
[1940] 2 KB 420, 428:
I conceive
that the policy of the legislature is that if the farmer uses his land for
commercial profit from other than agricultural operations, it is right that he
should, in respect of that user and that profit, be subject to the burden of
rates.
The use as a
racecourse of land which would otherwise qualify for agricultural exemption
from rating is bound, in the very nature of the case, to be occasional. We are
not here concerned with the kind of old fashioned cross-country horse-race to
the village church as the winning post which no doubt originally gave rise to
the use of the expressions ‘point-to-point’ and ‘steeplechase’. What we are
concerned with in this case, although it is only used once a year, is a modern,
well-equipped and sophisticated point-to-point racecourse. If this is not the
kind of racecourse use that the legislature had in mind as excluding the
farmer’s exemption from rating, I find it difficult to imagine any that would
be.
Accordingly, I
would dismiss the appeal with costs.
LORD FRASER OF
TULLYBELTON LORD ELWYN-JONES and LORD KEITH OF KINKEL agreed that the appeal
should be dismissed for the reasons given in the speech of Lord Bridge of
Harwich and did not add any observations of their own.
