Rating–Partial occupation only by ratepayer of hereditament described in valuation list–Unless description in list includes on its face property which the ratepayer does not occupy, his only remedy is to propose an alteration in the list–Distress warrant to issue
This was an
appeal by the London Borough of Camden from the refusal of Hampstead justices
on May 1 1975 to grant a distress warrant against the respondent, Theodore
Hertzl Herwald, in respect of general rates on premises occupied by him at 63
Loveridge Road, London NW6.
G R G Roots
(instructed by the town clerk) appeared for the appellants, and D Keane
(instructed by Walford & Co) represented the respondent.
Giving the
first of the reserved judgments, GOFF J said that the matter had come before
the justices by way of complaint by the appellants for a summons for
non-payment of the general rate in the sum of £1,019 in respect of premises at
63 Loveridge Road, Kilburn, London NW6, for the period October 1972 to March
1975. The justices found the following facts. The premises were shown on the
valuation list as a single hereditament, described as a ‘workshop and store.
‘At all material times the respondent had occupied only part of the premises,
which consisted of three detached buildings separated from each other by small
yards. One building was a three-storey house, the ground floor of which
consisted of a shop and office; the other two buildings were described as
factories, one having two floors, the other only one. The respondent occupied only
an office on the first floor of the house, with use of a kitchen, and the
one-storey factory. The justices considered that since the respondent had at
all material times occupied only these parts of no 63, he was not liable for
the rates for the whole premises, and they refused to issue a distress warrant.
He (his
Lordship) was of opinion that the justices were wrong. It was right that a
person was liable to be rated only in respect of property of which he was the
occupier, as to which see now section 16 of the General Rate Act 1967. But it
did not follow that merely because he could show that he did not in fact occupy
part of premises in respect of which a rate had been made, a distress warrant
should not be issued. To resist the issue, he must show that the description of
the rated property in the valuation list included on its face property which he
did not occupy. That principle was stated in Manchester Overseers v Headlam
and London and North Western Railway Co (1888) 21 QBD 96 at 98 in a passage
which had since been frequently cited and applied:
If one entire
assessment be made in terms upon property which he does occupy, and upon other
property which he does not occupy, so that upon the true state of facts being
ascertained it is impossible to satisfy the description in the rate-book
without including property which he does not occupy, the rate will be bad and
ought not to be enforced.
In that case
property occupied by the railway company had been assessed as ‘offices and land
with rails,’ but in assessing the amount of the rate the overseers had included
certain buildings which were not occupied by the company. It was held that
since the property in fact occupied by the company satisfied the description in
the rate-book, the rate was good on the face of it and a distress warrant
should be issued. The company’s proper remedy was to appeal against the
assessment; not having appealed, they could not resist the issue of the
warrant. By way of contrast, in Langford v Cole (1910) 74 JP 229,
where a single assessment of poor rate was made on property described in the
rate-book as ‘mansion house and grounds,’ and it was established that the
mansion house itself was unoccupied at the date when the rate was made, it was
held that the rate made in respect of the whole property could not be enforced
and that a distress warrant should not therefore be issued.
The position
therefore was as follows. If the person rated was in occupation of premises
which fulfilled the description in the valuation list, that was sufficient for
the issue of a warrant; but if the description in the valuation list could not
be satisfied without including property which the person rated did not occupy,
the rate could not be enforced against him and a distress warrant should not be
issued. It followed that in the present case the justices had applied the wrong
test and had erred in law, and the warrant should have been issued. The
premises were described in the valuation list as a ‘workshop and store.’ Neither term provided a precise description,
and together they were used to describe premises which consisted not of two but
of three buildings. They could not have been intended to describe two distinct
structures, but were words of general description intended to apply to the
whole premises. A similar use of words was to be found in Vernon v
Castle (1922) 127 LT 748, which was concerned with premises described as
‘quay and wharves.’ In that case Salter
J at p 754 referred to the very general language used by rating officers in the
description of hereditaments, and Lord Hewart CJ said he could not help
thinking that the expression’ ‘quay and wharves’ was no more a combination of
distinct things than would be the expression ‘quay and/or wharves’ or ‘quay or
wharves.’ The same could be said of
‘workshop and store’ in the present case, and it was impossible for the
respondent to say that that description in the valuation list could not be
satisfied without including property at 63 Loveridge Road which he did not
occupy.
It was true
that on the facts found by the justices, a substantial part of the premises was
not occupied by the respondent, but provided that the part occupied by him
fulfilled the description in the valuation list, non-occupation of even a
substantial part did not prevent him from being liable for the rate in respect
of the whole: see for example Spiers & Pond Ltd v Finsbury
Metropolitan Borough Council (1956) 1 RRC 219. The proper remedy of the
respondent was to challenge the assessment by making a proposal for the
alteration of the list under section 69 (1) of the Act of 1967. The appeal
should be allowed.
LORD WIDGERY
and O’CONNOR J agreed, and the appeal was accordingly allowed. The case was
remitted to the justices with a direction to issue a distress warrant. No order
was made as to costs.
On April 13
leave to appeal to the Court of Appeal was refused.
