Rating – Hereditament – Occupation – Council providing coach park – Whether coach park situated on highway maintainable at public expense – Whether council in rateable occupation of coach park – Appeal allowed
The appellant council appealed against the decision of the Valuation Tribunal for England (VTE) dismissing its appeal against the respondent valuation officer’s decision to enter property known as CMK Coach Park, Marlborough Gate, Milton Keynes in the 2010 rating list with effect from 1 April 2010.
The property comprised 18 marked parking bays for use by coaches and buses. The parking spaces were provided free of charge. Since the material day there had been a number of developments. Bollards were placed across one entrance to the property to prevent car-sized or larger vehicles from using it to enter or exit the property. The bollards had no effect on the use of that entrance by bicycles or pedestrians. Since 19 December 2016, the property had been subject to a Traffic Regulation Order (TRO) which prohibited vehicular use of the entrance and replicated legally what the bollards achieved physically.
The sole issue was whether the property should be shown in the rating list as a hereditament. The appellant contended that the property was highway land used for highway purposes and, as such, was not capable of being a hereditament. In those circumstances it should not be included in the 2010 rating list.
The VTE held that the facts were distinguishable from those in Dorset County Council v Reeves (VTE decision 23 December 2014) (the Wareham decision). In particular, the property was situated away from the main highway. There was a clear demarcation between the main highway and the appeal site. A grass border with miniature wooden pillars provided an effective barrier between the main thoroughfare and the appeal site. Although the local authority highways department might maintain the land, the coach park was not situated on a highway. The signage on display at the entrance made it clear that only buses and coaches could access the coach park. The four tests of rateability had been met. The hereditament in question was the 18 marked coach bays which were clearly in the rateable occupation of the council and not the general public at large.
Held: The appeal was allowed.
(1) A highway had to be open to the public at large-rather than a way open only to the owners, occupiers and lawful visitors of particular properties. The public had to have the right to use the highway-as distinct from using it under licence or permission, express or implied. The nature of the public right to use a highway was primarily one of passage. There had to be a known and identifiable route over which the right of passage was exercisable by the public. If a highway was maintainable at public expense, then its ownership was vested in the local highway authority. However, a highway authority was subject to a number of special constraints. Its ownership of the highway was there for a specific purpose-to facilitate the safe and unobstructed use of the highway by the public. It was a creature of statute and its responsibilities in relation to the highway were governed by statutory restrictions and impositions-mainly related to the authority’s duties owed to highway users.
(2) Traffic authorities had power to make TROs for the purposes specified in sections 1 and 2 of the Road Traffic Act 1984. Under section 35, the appellant was empowered to specify, among other things, the class of vehicles which could use parking spaces. In this case it restricted parking at the property to buses. Under section 45 a traffic authority might by order designate parking places on highways for any class of vehicles and the authority might make charges for vehicles left in a parking place so designated. Under article 10(1) and (3) of the Traffic Regulation Order 2002, there was specific authority for the parking of buses on the property. Under article 10(2) no other type of vehicle was entitled to park on the property. Thus, the effect of the order was to take away the right to park on the property for all vehicles except buses. It did not affect the right of the public to pass and repass over the property (unless obstructed by a parked bus) either as pedestrians bicyclists or car drivers. Accordingly, the use of the property was plainly a highway use. The parking of buses on designated parts of the highway was within the objectives at which a TRO could be aimed.
(3) The four necessary ingredients of rateable occupation were: (i) there had to be actual occupation; (ii) it had to be exclusive for the particular purposes of the possessor; (iii) the possession had to be of some value or benefit to the possessor; and (iv) the possession had not to be for too transient a period. The public highway has long been recognised as a classic example of land which was incapable of rateable occupation (so that public highways were not entered into the rating list). In the present case, the council was not in rateable occupation of the property. It had to be remembered that at the material day there were no parking charges in respect of the property. The court would direct that the property be removed from the rating list with effect from 1 April 2010. John Laing and Son Ltd v Kingswood Assessment Committee and Other, [1949] KC 344 applied. Dorset County Council v Reeves (VTE decision 23 December 2014) followed.
Luke Wilcox (instructed by Milton Keynes Council Legal Serviced) appeared for the appellant. The respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Milton Keynes Council v Alexander (VO)
