Telecommunications network — Nature of occupation of cables — Whether rateable occupation — Appeal allowed
The respondent operated a telecommunications network. It consisted partly of “own-build” cables, located in ducts belonging to the respondent, but the greater part utilised “leased fibres” in cables and ducts belonging to third parties. Although the network covered several rating areas, the appellant valuation officer entered the whole of it within the list for a single area, pursuant to regulation 6 of the Non Domestic Rating (Miscellaneous Provisions) Regulations 1989, as being the area containing the highest component value.
The respondent appealed to a valuation tribunal, which held that the respondent was not in rateable occupation of the leased fibres. It accordingly deleted the network from the ratings list on the ground that no rateable hereditament existed. The appellant subsequently made a further listing, to reflect extensions to the network, but that listing was again deleted on appeal. The appellant appealed, and a preliminary issue was tried on the issue of rateable occupation of the leased fibres.
Held: The appeal was allowed.
When determining the issue of rateable occupation, the decisive matter was the extent to which the owner of a hereditament retained general control over the occupied part: Westminster City Council v Southern Railway Co Ltd [1936] AC 511 applied. Although the leased fibres were, physically, part of the host companies’ cables, the respondent had a separate occupation of them by virtue of its use. It was, accordingly, in rateable occupation of the leased fibres, and its system constituted a single hereditament. In that regard, it was relevant that: (i) the respondent’s entitlement under the agreements was to the use of particular fibres, which had been provided for its specific use and spliced to its own-build fibres; (ii) its use of those fibres was exclusive; and (iii) it alone activated the fibres for the transmission of signals using its own equipment. The respondent did not have to know where the fibres were, or have physical access to them, in order to enjoy their use.
David Holgate QC and Timothy Morshead (instructed by Revenue & Customs) appeared for the appellant; Derek Wood QC and Robert Walton (instructed by Mr Aiden Paul, by direct access) appeared for the respondent.
Sally Dobson, barrister
