Rating — Rateable occupation — Appeal by owners of warehouse premises against decision of Kennedy J, who upheld decision of magistrates holding that the owners were in rateable occupation of a particular bay of the warehouse — The warehouse consisted of four bays, three of which were occupied by a warehousing company — The fourth bay, the subject of the appeal, had not been used for storage or any other purpose until after the end of the period in respect of which the disputed rates were demanded — The magistrates nevertheless decided that the appellants were in rateable occupation of this bay during that period — Among the reasons on which the magistrates relied were the wide terms in which the appellants’ memorandum of association were framed, empowering the appellants to act as, inter alia, warehousemen; the estate agents’ letting particulars for the warehouse, which indicated that ‘full on site facilities’ were provided; a number of rating cases to which the magistrates were referred; and a finding that there was nothing to prevent the appellants from providing warehouse facilities and services themselves
held that the magistrates were entitled on the evidence to come to the
conclusion they did, namely, that the appellants had been in rateable
occupation during the material period — He added, however, that he was by no
means convinced that in the place of the magistrates he would have reached the
same conclusion, but the finding was a matter for them subject to the court’s
being satisfied that there was evidence on which they could so decide
Appeal examined the magistrates’ reasons, including the authorities which had
been cited to them in detail — There was no substance in the memorandum of
association point, which merely showed that it was within the power of the
appellants to act as warehousemen if they chose — The letting particulars were
mainly directed to finding a tenant of the building or part of it, although
they suggested that if a party wanted to use space without taking a tenancy he
could be accommodated — There was, however, nothing to suggest that the
appellants were ever to act as warehousemen — As to the point that there was
nothing to prevent the appellants from providing certain service requirements
themselves in respect of the warehouse, this was factually correct, but it did
not pose the right question — The question was whether the appellants were
holding themselves out as warehousemen and whether they were in fact and in
truth in occupation — The answer was that they were not
considered at some length the cases which had been cited, in particular R v Melladew, where,
in contrast to the present case, the owners who were held to be rateable were
themselves warehousemen — The importance of that authority lay in affirming the
principle that the question is one of intention to be decided on all the facts
of the case — Other authorities considered were Borwick v Southwark
Corporation and Associated Cinema Properties Ltd v Hampstead Borough Council —
The court’s conclusion was that on the agreed facts and the correct
construction of the letting particulars the magistrates could not properly decide
that the appellants had been in rateable occupation of the fourth bay — Dillon
LJ, agreeing in the result, preferred to rest his decision on the narrower
ground that the offer in the letting particulars of a lease of the building was
wholly inconsistent with the conclusion that the appellants were carrying on a
warehousing business and were in occupation as providers of warehousing
services — Appeal allowed
The following
cases are referred to in this report.
Associated Cinema Properties Ltd v Hampstead Borough
Council [1944] KB 412; (1944) 60 TLR 275; sub nom Hampstead Corporation
v Associated Cinema Properties Ltd [1944] 1 All ER 436; 107 LT 266; 42
LGR 175, CA
Bootle Overseers v Liverpool Warehousing Co
(1901) 17 TLR 550; [1900-3] All ER Rep 262
Borwick v Southwark Corporation [1909] 1
KB 78; (1909) 99 LT 841; 7 LGR 10
Edwards v Bairstow [1956] AC 14; [1955] 3
WLR 410; [1955] 3 All ER 48, HL
R v Melladew [1907] 1 KB 192
This was an
appeal by Calmain Properties Ltd, freehold owners of a warehouse building at
Hellaby Lane, Bramley, Rotherham, from a decision of Kennedy J upholding the
decision of magistrates at Rotherham that the appellants had been in rateable
occupation of a particular bay, known as Bay 4, of the warehouse. The
magistrates had issued a distress warrant for some £90,000. The respondents,
Rotherham Metropolitan Borough Council, were the rating authority. Kennedy J’s
decision was reported at [1988] 1 EGLR 166.
David
Widdicombe QC and Miss Mary Macpherson (instructed by Muscatt Walker Hayim)
appeared on behalf of the appellants; Patrick Hamlin (instructed by the
director of legal and administrative services, Rotherham Metropolitan Borough
Council) represented the respondents.
Giving the
first judgment at the invitation of Dillon LJ, BINGHAM LJ said: The short
question raised by this appeal is whether the Rotherham justices were correct
in holding that the appellants were in rateable occupation of premises known as
Bay 4, Hellaby Lane, Bramley, Rotherham, for a period after October 1 1982. The
justices held that the appellants had been in rateable occupation and, on a
complaint made under section 97 of the General Rate Act 1967, issued a distress
warrant for something over £90,000 on April 11 1985. On appeal to Kennedy J by
case stated he upheld the justices’ decision, holding that that decision was
one which was open to the justices on the facts found. A further appeal is
accordingly made to this court.
The applicants
are a company incorporated in Scotland. They were formerly called NMT Properties
Ltd. There has been a change of name and they are now called Calmain Properties
Ltd, but I shall continue to call them NMT for convenience. NMT has one
director, Mr R N Khan, who owns 46% of the shares. The evidence is that
NMT is a property development and owning company and has never carried on
business as warehousemen.
The premises
in question, Bay 4 at Hellaby Lane, are part of a new building finally
completed on October 1 1982. The building was, as the facts show, built for
NMT, who are the freehold owners of the building. Bays 1, 2 and 3 form part of
the same building and are alongside Bay 4, being part of the same complex. NMT
are freehold owners of those premises, and developed them also. But, so far as
Bays 1, 2 and 3 are concerned, the history is slightly different.
By an
agreement made on August 6 1981 NMT agreed with Carreras Rothmans Ltd to build
and complete Bays 1, 2 and 3, whereupon Carreras Rothmans would execute a
warehousing agreement with a company named Industrial Storage & Forwarding Ltd,
of which Mr R N Khan and another were directors. This arrangement was duly
completed.
From April 1
1982 to September 30 1983 Industrial Storage & Forwarding occupied Bays 1,
2 and 3 on a letting from NMT and provided warehousing services for Carreras
Rothmans. That appears as an agreed fact in the case stated. At the end of
September 1983 that arrangement changed. Industrial Storage & Forwarding
dropped out of the picture, and indeed the company went into liquidation a few
months later. That company’s role was assumed by Industrial Storage (Rotherham)
Ltd, who accordingly became tenants of NMT in place of Industrial Storage &
Forwarding Ltd. On September 30 1983 Industrial Storage (Rotherham) Ltd entered
into a new contract with Carreras Rothmans.
Industrial
Storage (Rotherham) Ltd is a company incorporated on September 6 1983. It has
two directors, of whom Mr R N Khan is one, and owns 90% of the shares. After
September 30 Industrial Storage (Rotherham) Ltd carried on as warehousemen for
Carreras Rothmans. So far as Bays 1, 2 and 3 are concerned, no problem about
the rates has arisen. It was accepted that the premises were occupied first by
Industrial Storage & Forwarding Ltd and then by Industrial Storage
(Rotherham) Ltd, and the rates throughout the period have been duly paid.
In the case of
Bay 4, the premises were not in fact used for any purpose from October 1 1982
(when the building was completed) until February 22 1985, a date well after the
date of the complaint to the justices. NMT did, however, instruct estate
agents, who issued letting particulars. Those are of some importance in the
case, and I should therefore refer to them.
The
particulars appear on the writing paper of agents describing themselves as
‘Auctioneers, Valuers, Land and Estate Agents’ and, so far as relevant, they
read as follows:
TO LET
POSSIBLY THE FINEST WAREHOUSING AVAILABLE
IN THE NORTH OF ENGLAND 43,500 sq ft (OR MAY DIVIDE)
There is then a picture of the premises
and a short description as to its location, and the particulars continue:
AVAILABLE ON SHORT, MEDIUM OR LONG TERM
BASIS.
Its situation is further described, and
various particulars of the height and construction of the building are given.
It is stated, among other details:
Superb on site security, including
controlled security boom.
It continues:
Rent: By negotiation.
Rateable Value: To be assessed.
Lease: Term by negotiation. Lessors are
prepared to consider short, medium or long term period: Available as a building
lease or alternatively with full on site facilities provided by one of the
leaders in the field of storage, materials handling and forwarding.
Legal costs: In the event of a building lease the
lessees to be responsible for lessors’ legal costs incurred in the preparation
of the lease.
I shall return
to consider the effect of these particulars later, but it seems convenient at
this stage to make two points. The first is that the expression ‘building
lease’ is not used here — as is common ground — in its normal sense but as
indicating a lease available of the building or part of it and not a lease
involving any building work. Second, the reference to ‘full on site facilities
provided by one of the leaders in the field of storage, materials handling and
forwarding’ is not suggested as a reference to NMT as leaders in the field of
storage, materials handling and forwarding but as a reference, perhaps, to
Industrial Storage & Forwarding Ltd or Industrial Storage (Rotherham) Ltd.
In holding
that NMT were in rateable occupation for the relevant period, the justices
relied on six reasons of which (1) and (2) were not so much reasons as
statements of agreed facts, which I have already covered in the recitation I
have given. I shall accordingly begin, in quoting their reasons, with no (3):
(3) We were told, and indeed read for ourselves,
that the Memorandum of Association of NMT Properties Ltd, although primarily an
investment company, empowered the appellants to act as warehousemen.
(4) There was no evidence to suggest that in this
particular case, any arrangements whatsoever had been made by NMT Properties
Ltd to offer the lease of the property to an intermediary such as Industrial
Storage (Rotherham) Ltd were a customer to be found.
(5) We were shown certain agent’s letting
particulars giving a description of the warehouse itself and indicating that
full on site facilities could be made available. It was argued that if such facilities
were required, that these would not be provided by NMT Properties Ltd but by
some other company, such as Industrial Storage (Rotherham) Ltd. At the stage in
question, however, where no tenant had actually been found and the extent of
the service requirements of a prospective tenant are not known, we were of the
opinion that there was nothing to prevent NMT Properties Ltd from providing
certain service requirements themselves in respect of the warehouse.
Even if this did not eventually happen
and that NMT Properties Ltd did not directly provide the service facilities
required, it was evident that they would indirectly provide those services by
arranging for the property to be initially let to another company, such as
Industrial Storage (Rotherham) Ltd, who would undertake to provide whatever
services were required, and by introducing the prospective tenant to that
company.
(6) They were, in any event, ready to make
available warehouse space to take in the goods of a prospective tenant and we
agreed with the argument of the Counsel for the Respondent that in these
circumstances, the warehouse was ‘open for business’ and that in accordance
with the principles laid down in the case of R v Melladew and the
other cases referred to, NMT Properties Ltd was in rateable occupation of the
premises.
It is, I
think, clear from that recital of the justices’ reasons that they reached their
conclusion in reliance substantially on four things. First, the construction
they put on NMT’s memorandum of association; second, the construction they put
on the letting particulars; third, the authorities to which they were referred
and, fourth, the findings which were made that it was possible that NMT would
either provide warehousing facilities themselves or through a company such as
Industrial Storage & Forwarding Ltd or Industrial Storage (Rotherham) Ltd.
I need not
linger on the first of those grounds relating to the construction of NMT’s
memorandum of association. The justices and the learned judge held on the
construction of the memorandum that it was within the power of NMT to act as
warehousemen if the company chose to do so. That conclusion was challenged in
NMT’s notice of appeal, but it is a conclusion which, with respect, appears to
be plainly correct, and Mr Widdicombe, appearing for NMT, did not advance any
argument to the contrary. Indeed, he effectively abandoned that point.
I shall go on,
therefore, to the second point, namely the construction of the letting
particulars. The question does arise as to what this document means and so
raises a question of construction. It is, I think, clear beyond argument that
by this document NMT were through their agents offering a lease of the building
or part of it. That was, I think, the primary object of this document, the natural
purpose for which to employ estate agents, and the language employed in the
particulars seems primarily directed to finding a tenant of the building or
part. It is, however, suggested, and in my judgment rightly suggested, that
there are references in the document which could be understood to suggest that
if a party wanted to use space in the warehouse, but not to take a lease of the
building or any part of it, NMT would be ready to arrange for space to be made
available through an intermediary company. That is, as I think, a possible
construction. But what is significant for present purposes is that there is
nothing to suggest that NMT were ever to act as warehousemen. Indeed, on the
evidence as a whole, there is nothing to suggest that NMT would in any situation
whatever act as warehousemen. They had never done so, and there is nothing to
suggest that they ever would. In either of the eventualities envisaged by these
letting particulars, NMT would let the premises to a lessee, the lessee being
either the party answering the advertisement directly or an intermediate
company which might or might not be one of the companies of which Mr Khan was a
director.
I turn
therefore to the authorities on which the justices also relied. It is
convenient to begin with R v Melladew [1907] 1 KB 192. Melladew
& Son were a firm of warehousemen, and the premises
Neptune Street, Liverpool, all being managed by Melladew & Son and all
under the control of a warehouseman employed by the firm. The firm admitted
that it was in occupation of the premises in question during the period for
which rates were claimed with the exception of two periods, one running from
October 1 1900 to December 12 of the same year, and the second running from
February 25 1904 to July 13 of that year. The findings of fact include the
following, which I take from p 194 at (c) and (d):
(c) During those two periods the warehouse had no
goods in it and was closed, and the defendant offered to allow the complainant
— ie the rating authority —
to keep the keys of the warehouse and
invited the complainant to inspect the premises.
(d) The warehouse was a self-contained one, and
consisted of several floors, and the defendant carried on the business of
warehouse keeper there and at adjoining and neighbouring warehouses by letting
either the whole of each warehouse or separate floors or rooms in the same, or
receiving goods at a certain rent per ton or per package per week. The
warehouse formed one of a block of warehouses in Neptune Street, all under the
management of the defendant and under the control of one warehouseman in the
employ of the defendant.
There was a finding that during the two
periods in question a high-pressure water supply, needed for operating a
hydraulic lift, had been cut off, and that weights, scales and trucks had been
removed to an adjoining warehouse. One then comes to finding (i) on p 195,
which in my judgment is crucial to an understanding of the case. It reads as follows:
(i) Throughout the rating years 1900 and 1904 the
defendant continued to carry on the business of warehouse keeper in Neptune
Street and elsewhere in Liverpool. Subject to the facts stated in paragraphs
(g) and (h)
— which I have summarised —
the warehouse was ready for the receipt
of goods at any minute, and the defendant was at all times throughout the said
periods prepared to receive applications for the hire of storage room, and
ready and willing to reopen the warehouse and receive goods into it, provided
that enough goods were offered to fill half the whole capacity of the
warehouse, this being the smallest quantity for which he thought it worthwhile
commercially to open the warehouse. With this proviso he was prepared to reopen
the warehouse and to let either the whole of it or separate floors or separate
rooms, or to let floor space at a tonnage or package rent. Subject to the
above-mentioned minimum limit, the defendant throughout the two periods was
willing to receive goods at the warehouse.
The justices in that case concluded that
the firm was not in rateable occupation during the two periods in question. The
Queen’s Bench Divisional Court affirmed that decision, but the Court of Appeal
took a different view. The Master of the Rolls, Sir Richard Henn-Collins, said
at p 200:
It is important to remember, in dealing
with questions of liability to pay rates, that occupation, which is the basis
of liability, necessarily varies with the nature of the rateable
subject-matter. The acts necessary to establish occupancy of a dwelling-house
may be very different from those which might be required to establish
occupation of a non-habitable hereditament. It is, I think, clear from a
comparison of many authorities that the intention of the alleged occupier in
respect to the hereditament is a governing factor in determining the question
whether rateable occupancy has been established.
Then on p 202 he said:
To come to the case before us, the
business of a warehouseman need not involve the actual presence on the premises
either of the warehouseman himself, or of any representative, or of any movable
chattels. If he has the necessary appliances ready for use when the demand for
storage comes, he is in a position to do business to which the physical
occupation of the premises is indispensable. If he holds himself out to let
storage space not involving a demise of the whole warehouse, and, by securing
exclusive control over the premises, has put himself in a position forthwith to
give the accommodation required, is he to be deemed as not the occupier until
some customer has been found to deposit goods for storage? And when he has secured customers, and his
warehouse has afterwards again become empty, is he to be deemed as having
ceased to occupy? I cannot think that
this can be so. I am aware that ownership is distinct from occupation, and that
an owner does not make himself rateable by trying to let a house which he has
ceased to inhabit. But the principle involved in that proposition does not
apply to the case of the tenant of a vacant warehouse who retains control over
it for the purpose of letting storage room. In the case of the owner seeking to
find a tenant in the case put, no assertion of occupation by him is involved.
If he gets a tenant, he substitutes the occupation of another person for his
own. The warehouseman in getting a customer supplies visible evidence of his
own occupation. In the case of the owner who tries to let the intention is not
to occupy. In the case of the warehouseman it is exactly the reverse. It seems
to me on the facts found by the justices, which I need not repeat, that the
intention of the defendant here was as far as possible to avoid the semblance
of occupation while carefully guarding the substance. He carefully retained the
control, while his continuous intention was to utilise the premises for the
purpose of his business whenever the opportunity offered.
Cozens-Hardy LJ agreed with the judgment
of the Master of the Rolls. Farwell LJ gave a concurring judgment, our
attention being particularly drawn by counsel for the rating authority to the
passage at the bottom of p 203:
The test, in a case like the present, of
business premises, appears to me to be, Has the person to be rated such use of
the tenement as the nature of the tenement and of the business connected with
it renders it reasonable to infer was fairly within his contemplation in taking
or retaining it?
And at the bottom of p 204:
Under these circumstances I find it
impossible to say that the defendant has ever given up the use of this
warehouse, or withdrawn it from his business so as to cease to occupy it within
the meaning of the Act. He has merely kept it as spare room.
That decision
strikes me, if I may respectfully say so, as being plainly right on its facts,
but is in obvious contrast with the present case, since NMT are not and never
have been warehousemen and Bay 4 at the material time was not and had never
been used by NMT or anyone else as a warehouse. The authority is none the less
of importance as affirming the important principle that the question is one of
intention to be decided on all the facts of the case.
Our attention
was also drawn to Borwick v Southwark Corporation [1909] 1 KB 78.
In that case a firm of manufacturers, as one sees from the headnote, purchased
a building with the object of having premises to which they might transfer
their business in the event of their existing factory being burnt or other
emergency arising. They put into the building and affixed to the walls some
shafting and wooden benches suitable for their business, but no engine or
motive power. Lord Alverstone CJ said at p 82:
I am of opinion that this appeal must
fail, though the question is not without difficulty. It seems to me that there
was evidence of beneficial occupation. There is no doubt that the appellants
can make use of this property if they so choose, and will do so if and when
they require it. I think they are making use of it by having the necessary
shafting and benches upon the premises in readiness for use.
Then lower down the same page, having
been referred to Bootle Overseers v Liverpool Warehousing Co (1901)
17 TLR 550, he said:
The distinction between the case of Bootle
Overseers v Liverpool Warehousing Co and the present is that in the
former the judges came to the conclusion of fact that the owners had no
intention to carry on their business in the particular premises which it was
sought to rate, whereas here I think the facts do point to an intention on the
part of the appellants to carry on their business upon the premises at any
moment that they may require to do so.
Lastly, we
were referred to Associated Cinema Properties Ltd v Hampstead Borough
Council [1944] KB 412, our attention being particularly drawn to a passage
in the judgment of the court at p 415. The passage reads as follows:
It was contended, however, on behalf of
the council that ‘the possibility of physical occupation coupled with the
intention to occupy physically in case of need’ constituted rateable
occupation. In support of this submission much reliance was placed on the two
cases which the justices had regarded as compelling them to hold that the
company were occupiers. Of these the first was R v Melladew. The
hereditament there in question was a warehouse. Now, it is the business of a
warehouseman to let unoccupied space for the purpose of the temporary storage
of goods. To be available for this purpose, the warehouse must be empty, in
whole or in part. If the owner makes a public announcement that he is prepared
to let space in an empty warehouse, he may reasonably be said to be using that
warehouse for the purposes of his business. This, briefly, was the ratio
decidendi of R v Melladew; and it has, in our judgment, no
relevance to the present case. Borwick v Southwark Corporation,
which was the other case relied on by the justices, may appear at first sight
to give more support to the council’s contention. The correctness of this
decision has been doubted, and, if it were necessary to read it as affirming
the proposition that a mere intention to occupy empty premises in a
problematical contingency is equivalent to occupation, we should regard it as
contrary to established principle and unsound. It is, however, clearly
distinguisable on the facts from the present case.
Counsel for
the rating authority placed particular reliance on the passage in the middle of
that extract relating to a public announcement, but it was of course in the
context of a case in which a public announcement had been made by a
warehouseman. Here, as I repeat, there was no foreseeable contingency in which
NMT would let space to a customer as a warehouseman.
Counsel for
the rating authority propounded the test, which was
premises were open for business. That is no doubt often a useful and helpful
approach, but it is not the statutory test; that is, whether NMT were at the
relevant time in occupation of these premises. If they were in occupation, it
can only be because they were using the premises as warehousemen, and in my
judgment it is plain on the facts that they were not using the premises as
warehousemen and were not in any eventuality intending to do so.
The learned
judge at p 3E of his judgment said:
Here Mr Widdicombe submits that NMT was
simply a property company seeking a tenant, not a warehouse company seeking
customers, and if he is right about that the magistrates’ decision cannot
stand.
It seems to me plain that NMT were not in
any realistic sense a warehouse company seeking customers. If they were indeed
soliciting custom directly at all, it was with a view to arranging for an
intermediary letting, still acting as a freehold owner seeking to arrange an
advantageous letting of premises.
I turn, lastly,
then to reasons (4) and (5) given by the justices. They say in (4) that there
was no evidence to suggest that arrangements had been made by NMT to offer the
lease to an intermediary. Factually, that is quite correct, but I think that
NMT are entitled to submit, as they do, that the finding is essentially
irrelevant. It would in the circumstances have been surprising if arrangements
had been made for a lease to an intermediary until such time as a warehouse
user was in prospect. But what is more significant is that, so far as there was
evidence of the company’s practice, that practice was to let to an intermediary
and not direct to a depositor.
As part of
reason (5), the justices have found that there was nothing to prevent NMT
Properties Ltd from providing certain service requirements themselves in
respect of the warehouse, and that again is factually correct. It does not,
however, in my judgment ask the right question, which is not whether there was
anything to prevent NMT letting the space direct but whether they were holding
themselves out as warehousemen and whether they were in fact and in truth in
occupation. The answer to the correct question is, in my judgment, that they
were not. Also as part of their fifth reason the justices say that even if NMT
did not directly provide the service facilities required, it was evident that
they would indirectly provide those services by arranging for the property to
be let initially to another company, Industrial Storage (Rotherham) Ltd, who
would undertake to provide whatever services were required. That may well be
true, but the reasoning, in my judgment, betrays some slight misunderstanding
on the part of the justices, because, had there been such a lease to an
intermediary company, it would in all probability have been that company which
went into occupation, as it was accepted that Industrial Storage &
Forwarding and Industrial Storage (Rotherham) Ltd had previously done in the
case of Bays 1, 2 and 3. The fact that provision might have been made for such
an indirect letting does not have the effect of sustaining the conclusion that
NMT itself was in occupation before such letting.
The learned
judge, at p 14G, ended his judgment in this way. He said:
But in all the circumstances it seems to
me, as I have indicated, that, although I am by no means convinced that in the
place of the magistrates I would have evaluated the matter as they did, they
were entitled on the facts to make the findings that they did and accordingly
this appeal must fail.
Accordingly, it has been argued that the
decision was one of fact for the justices with which we should not interfere.
This is, however, a case in which there is no relevant disputed fact, since all
the facts are agreed. The only document now relevant for consideration is the
letting particulars, and again the construction of that document is a question
of law. The question was whether on the agreed facts and on a proper
construction of the letting particulars in the context of those facts the
justices could properly conclude that NMT was in rateable occupation of Bay 4
during the relevant period. With respect to the judge and to the justices, I
conclude that the justices could not properly reach such a conclusion.
I would
accordingly allow this appeal.
STOCKER LJ
agreed and did not add anything.
Also agreeing,
DILLON LJ said: I agree that this appeal should be allowed, but I rest my
judgment on a rather narrower point.
The question
is whether the appellants were at the relevant time in rateable occupation of
Bay 4. As Kennedy J pointed out, of the four ingredients of rateable
occupation, the one in issue in the present case is actual occupation. The case
for the rating authority depends entirely on the agents’ particulars issued by
Merryweather Corbett & Dawson, to which Bingham LJ has referred. Without
those, there would be nothing whatsoever to suggest that the appellants were in
actual occupation of Bay 4. They had never actually occupied it in any ordinary
sense for any business purposes, and in fact Bay 4 was not used for storage or
any other purpose until 1985.
The case for
the rating authority is founded on the decision in R v Melladew [1907]
1 KB 192, to which Bingham LJ has already referred, but the facts of Melladew
were completely different. In that case warehousemen had been carrying on
the business of warehousemen in the premises in question. It was said that that
business had been discontinued and that the premises were empty, but while they
were empty the former warehousemen were still advertising for custom for the
warehousing of goods in the premises. In the present case the agents’
particulars show that someone — presumably the appellants — got agents to
advertise the property by distributing the particulars, but the particulars
seek either a tenant to take what is called a ‘building lease’ of Bay 4, that
is to say a lease of the building as a whole or possibly of some part or parts
of it, or, alternatively, someone seeking facilities for the storage and
warehousing of goods. It is quite plain, and common ground, that if the
premises were let on what is called a ‘building lease’, the lessee would be in
occupation and liable for the rates and the lessor would not. The rating
authority seeks to deduce from Melladew that the advertiser is in
occupation because he is seeking people who want warehousing services and
facilities in the premises even though he is also seeking something quite
inconsistent with his being in occupation. Even assuming that the particulars
are to be construed as meaning that the appellants, and not any associated
company, were to provide the warehousing services and facilities for customers,
it seems to me that the offer of a building lease is wholly inconsistent with
any conclusion that the appellants were then, at the time of the issue of the particulars,
carrying on a warehousing business and were in occupation as providers of
warehousing services. They had not yet decided and they had not yet taken
occupation. You could only say that they were occupying as warehousemen if they
had indeed decided to carry on that business rather than to grant a building
lease, but on the material before the justices, as before us, the whole matter
was at large.
Consistently,
therefore, with Edwards v Bairstow [1956] AC 14, to which we were
referred, the court should interfere. The only conclusion, in my judgment, is
that the decision of the learned judge was wrong and should be set aside, and
that in answer to the question posed at the end of the case stated, the court
should declare that the decision of the justices that the appellants were in
rateable occupation of the premises was not a correct decision in law.
The appeal was allowed with costs in the
Court of Appeal and below.