Rating — Motorway contractors must pay rates on ‘borrow-pits,’ even those occupied for only a few months — Important observations on ‘permanence’ and ‘transience’ in rating cases — Time of occupation is only one of the factors involved — Further point on ‘separability’ — Fact that there may be no physical boundary between a motorway cutting and a borrow-pit does not mean that the whole is a single site for rating purposes
These were two
appeals by valuation officers from decisions of the Lands Tribunal (Sir Michael
Rowe, President, and Mr R C G Fennell) on May 21 1973 allowing appeals by
contractors, Dick Hampton (Earth Moving) Ltd and United Gravel Co Ltd, against
assessments to rates by local valuation courts of £13,000 and £8,000
respectively, applied to ‘borrow-pits’ at Stobbs Cross Lane, Durham, and
Moorshall Leaze Farm, Wiltshire, in use during the construction of the Durham
and the M4 motorways. The Lands Tribunal’s decision is reported at (1973) 227 EG
343.
Mr A P
Fletcher (instructed by the Solicitor of Inland Revenue) appeared for both
appellants, and Mr D Trustram Eve QC and Mr C Fay (instructed by Lovell, White
& King and by Hill, Dickinson & Co, of Liverpool) represented both
respondents.
Giving judgment,
LORD DENNING said: When contractors build a motorway, they dig cuttings through
the hills and build up embankments across the valleys. They use the soil from
the cuttings to make up the embankments, but there is often not enough soil
from the cuttings, so they have to get more from nearby land. They do this with
huge diggers and earth-movers. They call this adjoining land a ‘borrow-pit,’
that is, a pit from which they borrow the extra soil needed to make the
motorway. These borrow-pits are outside the line of the motorway itself, and do
not form part of the land which is compulsorily acquired for the motorway. In
order to get the borrow-pits, the contractors themselves make their own private
arrangements with the adjoining owners. They may buy the adjoining land, or pay
the owner for the right to extract the soil. They get these borrow-pits as
close as possible to the motorways so that the big machines can move the soil
quickly and directly to the embankment without going along the public highway.
We are here
concerned with two borrow-pits. One of them is in Wiltshire. In 1970 the M4
motorway was being built there. The contractors were McAlpines. They found an
area of farmland which contained limestone suitable as ‘fill,’ and they bought
the land through an associated company, the United Gravel Co Ltd. This
borrow-pit was separated by a few yards from the motorway. They installed plant
on it to crush the limestone, and moved the resulting fill by a conveyor belt
into a hopper on the motorway site. They worked the material in enormous
quantities and at a fast pace. In six months, out of seven acres, they moved
310,891 tons of fill. In Gloucestershire and Wiltshire most quarries produce
less than 100,000 tons in a whole year. The valuation court held that the
borrow-pit was in the rateable occupation of the United Gravel Co Ltd and
assessed it at £8,000 rateable value. The other borrow-pit is in County Durham.
In 1967 the Durham motorway was being built. The contractors employed
subcontractors for moving the earth. They were Dick Hampton (Earth Moving) Ltd.
They found an
with the owners by which they were permitted to dig the limestone out, paying a
price per cubic yd. They worked the material at a tremendous pace. In nine
months from 10 acres they took out 700,000 tons. In doing so, they completely
obliterated the boundary with the motorway. The borrow-pit and the motorway
were just one big excavation with nothing to show on the ground between them.
The subcontractors, for those nine months, occupied the borrow-pit and motorway
together as one. The valuation court held that the borrow-pit was in the
rateable occupation of Dick Hampton and assessed it at £13,000 rateable value.
On appeal, the
Lands Tribunal held that the borrow-pits were not rateable at all; and the
valuation officer appeals to this court. The first point for consideration is
whether the respondents’ occupation of the borrow-pits was too transient to
qualify as rateable occupation. In giving their decision, the Lands Tribunal
said:
‘There is no
doubt that one of the ingredients of rateable occupation is that the occupation
shall not be ‘too transient’ . . . In [cases] which related to temporary
structures the courts seem to have accepted as a general working rule that
occupation for a year or more is not too transient, and the implication has
been that if it has been for less than a year it is too transient. . . . The
purpose of the [borrow-pits] was from the outset a temporary one and in this
respect closely comparable with temporary structures like builders’ huts.
Applying the working rule established for such structures it appears to us that
in both cases the occupation was too transient to constitute rateable occupation
and we hold this as a matter of fact.’
It has often
been stated that one of the necessary ingredients of rateable occupation is
that ‘possession must not be for too transient a period’ (see John Laing
& Son v Kingswood Assessment Committee [1949] 1 KB 344 at 350
and London County Council v Wilkins [1955] 2 QB 653 at 672), and
in relation to builders’ huts, that 12 months is the working rule. More than 12
months, there is rateable occupation, less than 12 months, no rateable
occupation: see Sir Robert McAlpine & Sons Ltd v Payne (VO)
(1969) 210 EG 1326. But it is, I think, a mistake to elevate this ingredient
into a principle of law or to construct out of it any working rule. It started
with an observation made 100 years ago by Lush J in R v St Pancras
Assessment Committee (1877) 2 QBD 581. That case concerned an advertisement
hoarding put up as a temporary structure. Lush J compared it with that of an
itinerant showman who puts up roundabouts or swings. He said (p 589):
Thus a
transient, temporary holding of land is not enough to make the holding
rateable. It must be an occupation which has in it the character of permanence;
a holding as a settler and not as a wayfarer.
It is out of
those few words that this so-called necessary ingredient has sprung. But it is
to be noticed that in the only case in the House of Lords, London County
Council v Wilkins [1957] AC 362, there is nothing to support it.
Lord Tucker only said (at p 387) that there must be a sufficient degree of
‘permanence’ to attract rateable value; and he put ‘permanence’ in inverted
commas. Looking at the matter afresh, I can well see that when you are
considering a temporary structure, it would not be right to hold it rateable
unless there is something permanent about it. A holiday-maker who pitches his
tent in a field for a fortnight is not in rateable occupation, nor is the
showman who puts up his roundabout or swings for the fair; but a man who
occupies a bookstall or kiosk regularly for his business is rateable. As Lord
Russell of Killowen said in Westminster Council v Southern Railway Co
[1936] AC 511 at 529, when dealing with bookstalls and kiosks at Victoria
Station:
Rateable
occupation, however, must involve actual possession, and it must have some
degree of permanence: a mere temporary holding of land will not constitute
rateable occupation.
I do not think
that those cases about temporary structures have any application at all to
these borrow-pits. If some degree of ‘permanence’ is necessary, these
borrow-pits are as permanent as anything could be. The landscape has been
changed for ever. Huge slices have been dug out of the hillside, leaving gaping
voids which will never be filled up. They are far more permanent than the most
massive of buildings. It has all been done in a few months, but I cannot
believe that that is a ground for exemption from rates. It cannot depend on how
many machines the contractors have available, or whether they do it in 11
months or in 13 months. I cannot accept the supposed ‘working rule’ of 12
months. No matter whether the extraction takes only six months or nine months,
the borrow-pits are in the rateable occupation of the contractors. I see no
difference between these borrow-pits and quarries. In R v Westbrook
(1847) 10 QB 178 at 207 Lord Denman CJ took the case of a brickfield worked out
in less than a year to meet some enormous contract for a public work. He
clearly thought it was rateable, the value being assessed according to the
output: see Gilbard (VO) v Amey Roadstone Corporation Ltd (1975)
233 EG 1095, [1975] 1 EGLR 80. So here I hold these borrow-pits to be rateable.
Another point
was taken by the contractors. They said that the motorway itself was not
rateable, so also the borrow-pits ought not to be. In Arbuckle Smith &
Co Ltd v Greenock Corporation [1960] AC 813, the House of Lords had
to consider whether a warehouse was rateable. It was empty, but was being
extensively altered so as to qualify as a bonded warehouse. The House held that
the making of the alterations did not constitute rateable occupation. So,
applying that case, it is said that the contractors were not in rateable
occupation of the site of the motorway itself, and this was accepted by Mr
Fletcher for the valuation officer. The contractors went on to claim that if
they were not in occupation of the site of the motorway, it followed that they
were not in occupation of the site of the borrow-pit; at any rate, not in the
case from Durham, where Dick Hampton were the contractors, because that was all
one big site. The argument went in this way. Looking at the site, no one could
say, ‘This is the boundary of the borrow-pit, and this the boundary of the
motorway.’ It was all one, and the
diggers and earth-movers crossed it as one, so that there was but one occupation
of the whole. If the motorway was not in rateable occupation, neither was the
borrow-pit. This argument has a superficial attraction. The two sites were used
so much as one that they might in the ordinary way be regarded as a single
hereditament for rating purposes. But the authorities show that there are
exceptional cases where an apparently single site may be treated as two or more
hereditaments: see Gilbert v S Hickinbottom & Sons Ltd [1956]
2 QB 40 at 48. This is I think an exceptional case. The contractors occupied
the two sites in two different capacities. They occupied the site of the
motorway in their capacity as contractors doing the work of constructing the
motorway, and were therefore exempt from rating. But they occupied the site of
the borrow-pit in their capacity as suppliers of material, like the occupiers
of a quarry supplying material for use elsewhere. These two different
capacities meant that there were two separate hereditaments, so that the
motorway site is not rateable, but the borrow-pit is rateable.
The Lands
Tribunal said that the issues here were matters of fact. I do not think so. The
primary facts were not in dispute. The inference from them is a matter of law,
so that it is open to review in this court. In my opinion the borrow-pits are
rateable. They are in the occupation of the contractors who dig out the soil
for use elsewhere. I would allow the appeals accordingly.
ROSKILL LJ: I
greatly hesitate to disagree with Sir Michael Rowe and Mr Fennell upon a matter
of rating law, but I am clearly of the opinion that the Lands Tribunal of which
they were the two members concerned has erred in law and
valuation courts restored, and the respective figures of £8,000 and £13,000
re-established in the relevant valuation lists. These two cases afford an
interesting and at the same time curious illustration of the haphazard and
sometimes unsatisfactory way in which English law develops through successive
judicial decisions. A judge uses a phrase in a judgment; a phrase, which may or
may not have been carefully chosen, is used as apposite to a particular
background of fact. Some years later that phrase is borrowed, maybe by another
court or by counsel arguing another case, and applied to facts widely different
from those with which the first case was concerned. Perhaps half a century
later, those two decisions (and perhaps others which have been given during the
intervening period) are sought to be applied to yet another case where the
facts are entirely different, and the phrase originally used in relation to
particular facts of restricted application becomes elevated into a rule of law,
the purpose of the original use of the phrase and the background to that
original use having meanwhile been overlooked or forgotten or sometimes
completely misunderstood.
Let me
illustrate how this has happened in the present case. Almost 98 years ago to
the day, in R v St Pancras Assessment Committee (1877) 2 QBD 581,
the Divisional Court (Mellor and Lush JJ) was concerned to determine whether
the appellant, who was not the occupier of the premises in question but had
obtained permission to use them for advertising purposes, was liable to
assessment for rates. The appellant had placed advertising boards outside the
wall upon the ground in the street, leaning against the outside face of the
wall, which ran along the front of the premises. Inside the wall he had let
into the earth some ordinary scaffolding posts to which, at such a height as
could be seen from the street above the boards, a horizontal framework was
fastened upon which advertisements were exhibited, the hoarding being supported
by struts carried back at an angle. The appellant was assessed by the rating
authority to rates in respect of these ‘advertising stations,’ as they were
called. The Divisional Court held that he was not liable to be so assessed. The
reasons for this conclusion were succinctly stated by Mellor J at the beginning
of his judgment at p 585. He said:
I agree with
the opinion cited by Lord Hatherley in Cory v Bristow as that of
Lord Campbell CJ in the case of Forrest v Overseers of Greenwich,
viz that in order to be rateable the occupation must be permanent in its
nature. The word ‘permanent’ may not appear in every one of the judgments
delivered at various times as a description of the kind of occupation
necessary, but in the particular cases where no reference is made to the
quality of permanence as being a necessary element the facts spoke for themselves
with regard to this point.
Lush J, after
emphasising at p 588, the necessary element of permanence, said at p 589:
Thus a
transient, temporary holding of land is not enough to make the holding
rateable. It must be an occupation which has in it the character of permanence;
a holding as a settler and not as a wayfarer.
Two
observations may be made about those two sentences used by Lush J in his
judgment. First, the phrase ‘transient, temporary holding of land’ is used in
antithesis to ‘permanent’ holding of land; second, the adjective ‘transient’ is
clearly used in addition to the adjective ‘temporary’ in order to emphasise the
need for permanence to be shown before liability to assessment for rates can
attach. Yet from this use of this adjective ‘transient’ it has been suggested
that a so-called ‘principle of transience,’ to use the phrase used during the
argument, exists and has to be applied in the present case. In my judgment, as
my Lord has already said, that is wrong. The relevant principle, I venture to
think, is ‘permanence,’ not ‘transience.’
I can pass to
1949, noting, without stopping to read, the judgment of Lord Alverstone CJ in Mitchell
Brothers v Assessment Committee of Worksop Union (1904) 92 LT 62 at
64. In 1949, John Laing & Son v Kingswood Assessment Committee
[1949] 1 KB 344 came before this court. It was concerned with the liability of
building contractors to be assessed to rates upon structures erected upon a
site on which they were working, that site not being otherwise liable to assessment
to rates. It was held that the contractors, by reason of the erection of these
structures, acquired a beneficial occupation and therefore were liable to be
assessed for rates. In the course of his successful submission for the
respondent rating authority, Mr Michael Rowe QC (as he then was) formulated
four essential elements in rateable occupation: see p 348. The fourth element
was, ‘The possession must not be for too transient a period.’ That fourth element might, I venture to
think, have been equally well expressed by saying that the possession must have
the necessary degree of permanence: see Westminster Council v Southern
Railway Co [1936] AC 511 per Lord Russell of Killowen at p 529, quoted by
Tucker LJ in his judgment at p 354 of the report in Laing’s case. But be
that as it may, Mr Rowe’s propositions (including the fourth) were expressly
approved and applied in this court, especially by Jenkins J (as he then was) at
p 357. But it must be remembered that they were approved and applied for the
purpose of determining the crucial question: was the party sought to be made
liable for rates in beneficial occupation of the hereditament?
I turn next to
London County Council v Wilkins [1955] 2 QB 653 (in this court)
and [1957] AC 362 (in the House of Lords); again a case of structures erected
upon a building site. This time the landowners failed, notwithstanding the
argument of Mr Michael Rowe QC in the House of Lords on their behalf. Mr Rowe’s
four tests were referred to in argument in this court at p 658, and in the
judgment of Jenkins LJ at pp 661-2 of the Court of Appeal report; but, of
course, again only for the purpose already mentioned. They were again referred
to in the House of Lords in argument (p 365) and by Viscount Kilmuir LC in his
speech at pp 369 and 370. But I draw attention to the emphasis placed on the
word ‘permanence,’ in inverted commas, in the speeches of Lord Radcliffe at p
381 and Lord Tucker at p 384. Clearly the length of time during which the
structures were on the site was regarded as a factor, and indeed an important
factor, to be regarded in determining whether the necessary quality of
‘permanence’ had been established by the valuation officer. The next relevant
case is Sir Robert McAlpine & Sons Ltd v Payne (VO) (1969)
210 EG 1326, a decision of Sir Michael Rowe himself as president of the Lands
Tribunal and not the subject of appeal by the valuation officer, who was
unsuccessful. This again was a building-hut case in which the contractors were
successful. In a long and careful review of the authorities, Sir Michael
considered whether there was a minimum period of occupation which had to be
found in order to establish that the occupation was not too ‘transient,’ and if
so, what that minimum period was. But the very posing of that question shows
that the question of ‘transience’ was by now being, or at least in danger of
being, elevated to a question of legal principle, instead of being treated as a
factor, albeit often an important factor, in the class of case then under
consideration, to be considered in determining whether or not the requisite
quality of permanence was present. We were told that in the building-hut cases
12 months has been taken as the working rule. I say nothing to disturb a
practice which no doubt has been found administratively convenient in a
particular class of case. But the existence of an administratively convenient
practice must not be allowed to obscure what is the real question of principle
involved, the determination whether the occupation is of sufficient permanence
as properly to amount to beneficial occupation. It cannot be right in every
case of every kind where this question arises to answer it by reference solely
to the question whether the period of occupation
the 12 months’ period which I have mentioned.
Yet, with the
most profound respect, that is precisely what the Lands Tribunal have done in
the present case, though they point out that the ‘rule’ (as they call it, though
I question the use of that word if it is intended to indicate something more
than an administratively convenient practice) is not immutable. They have taken
this so-called rule and applied it almost bodily to entirely different
circumstances from those in which it has hitherto been used (see (1973) 227 EG
at 344). They have described the two respondent companies as ‘wayfarers,’ a
word clearly borrowed from Lush J’s judgment to which I have already referred.
But these two companies were to my mind anything but wayfarers. They properly
and lawfully moved hundreds of thousands of tons of material and wholly altered
the contours and appearance of the two sites with which we are concerned. This
is hardly the action of a wayfarer, or indeed of those in mere transient
occupation. Mr Trustram Eve argued that if we reversed the Lands Tribunal we
would be saying that transience had ceased to be one of the four relevant
factors. I do not agree. It will always be a factor in determining whether or
not the requisite element of permanence is present, but the degree of
importance attaching to this factor must vary with the circumstances of the
particular case. In the present class of case I regard the period of occupation
as of vastly less importance than its quality and its consequences. I am
therefore of the clear view that the ground on which the Lands Tribunal decided
these appeals in favour of the respondent companies cannot be supported, for
the wrong test was applied by them. On the facts found, each company was in my
view plainly in beneficial occupation of the sites for the periods in question,
and in Lord Radcliffe’s phrase in the Wilkins case at p 382, should
‘contribute to the current fund of the rating area’ for those periods, unless,
of course, Mr Trustram Eve can make good his second point, on which he failed
before the Lands Tribunal.
As regards
that second submission, Mr Trustram Eve first sought to found on the decision
of the House of Lords in Arbuckle Smith & Co Ltd v Greenock
Corporation [1960] AC 813. With respect, I cannot see how that case assists
the argument or is indeed in any way relevant to it. The decision was that the
appellants, not previously in beneficial occupation of a building designated as
a bonded warehouse, did not acquire such occupation during the period when the
building was being made fit for that use. Mr Trustram Eve’s real submission, as
it ultimately emerged, was that motorways during construction are not rateable
hereditaments, that therefore neither the relevant parts of the M4 nor those of
the Durham motorway were so rateable, that the sites adjacent thereto which the
two respondent companies were using were all part and parcel of the sites of
the motorways under construction, and thus that these were not separate
rateable hereditaments. Adroitly, counsel took the Durham case first, because
in that case there are photographs annexed to the special case which show that
during construction it was difficult, if not impossible, for the eye to
distinguish between the intended site of the motorway and the site from which
the material was being moved to the motorway. Mr Trustram Eve accepted that in
the Wiltshire case there was a far greater degree of physical separation. I do
not think that this question, which is largely one of fact, can be determined
simply by looking at photographs taken during construction. The principles
applicable were considered by this court in Gilbert (VO) v S
Hickinbottom & Sons Ltd [1956] 2 QB 40, especially in the judgment of
Parker LJ at p 54. The Lands Tribunal clearly had this decision in mind,
because they used the phrase ‘draw a ring round each of the pits,’ which is
plainly borrowed from Parker LJ’s judgment. This was a matter for them, and I
see no error in law in the essential part of their decision, though I am afraid
I am not able to follow the reference to the respondents’ employees ‘changing
hats’ when crossing from pits on to the motorway sites. I think the Lands
Tribunal must have meant to indicate that the quality and character of the
respondents’ occupation (a) of the pits, and (b) of the motorway sites, changed
as their employees crossed from the one to the other; but the point is not of
importance. Like my Lord, I think that these appeals must be allowed.
ORMROD LJ: The
decision of the Lands Tribunal on the first part of this case is a striking
example of a legal phenomenon which was vividly described by the late Mr
Justice Frankfurter in these words: ‘A phrase begins life as a literary
expression; its felicity leads to its lazy repetition; and repetition soon
establishes it as a legal formula, indiscriminately used, to express different
and sometimes contradictory ideas’ (Tiller v Atlantic Coast Hire
Railroad Co (1943) 318 US 54.68). The phrase in the present case is ‘not
too transient,’ or its equivalent expressed in terms of ‘permanence.’ It is unnecessary to quote the ratio of the
Lands Tribunal’s decision again in full, but it is quite clear that by the time
of their decision ‘transience’ was being used in a purely temporal sense. Under
what was referred to as the ‘general working rule,’ it had come to mean ‘less
than 12 months,’ with the astonishing result that an earth-moving contractor
who had succeeded in removing something in excess of 400,000 tons of material
from a borrow-pit under his control within the 12 months’ period, must, if the
tribunal’s decision is right in this case, be held not to be in rateable
occupation of the borrow-pit, whereas another contractor, working on the
adjoining sector of a motorway on which work had proceeded more slowly, so that
it took him rather more than 12 months to extract a similar quantity of
material from his borrow-pit, must be held to be in rateable occupation of it.
‘An excellent illustration,’ to quote Mr Justice Frankfurter again, ‘of the
extent to which uncritical use of words bedevils the law.’
The first time
the word ‘transient’ appears to have been used in this context is in the
judgment of Lush J in R v St Pancras Assessment Committee (1877)
2 QBD 581 at 589. By 1949, in the case of John Laing & Son Ltd v Kingswood
Assessment Committee [1949] 1 KB 344, it had become enshrined, in the form
‘not too transient’ as the fourth of the four essential characteristics of
rateability which were subsequently accepted and adopted by the House of Lords
in London County Council v Wilkins [1957] AC 362. These latter
cases were concerned with the rateability of temporary builders’ huts on
construction sites which had been in situ, in each case, for periods in excess
of one year, and it was held that such occupation of the land on which they
stood was ‘not too transient’ to escape liability for rates. This seems to have
led to the subsequent adoption of a general working rule for builders’ huts,
occupation for less than 12 months coming to be regarded as the equivalent of
‘too transient,’ so that Lush J’s original phrase has been transposed into an
arbitrary time-limit, which may well be a convenient time-scale in relation to
builders’ huts but becomes wholly irrational when applied to such an intensive
type of occupation that, within the time-limit, the occupier is found to have
removed many hundreds of thousands of tons of material from the occupied land.
We are, of course, bound by the Wilkins case to have regard to the
quality of ‘transience’ or ‘permanence’ in deciding whether a given occupation
of land is or is not a rateable occupation, but this time-scale must be
adjusted to the other characteristics of the occupation if absurd results are
to be avoided. The absurdity of the present case can be gauged from the fact
that the tribunal felt able to regard the earth-moving companies in this case
as ‘wayfarers’ rather than ‘settlers,’ to quote Lush J again.
Fixed
time-limits are in any event inappropriate. A tenant
occupation, because, first, he is shown beyond doubt to be the occupier, and
second, his occupation has sufficient permanence, since he is not a ‘wayfarer’
or a ‘transient.’ If Hamptons had taken
a mining lease from the owners for six months of the land from which they
extracted the extra material required for the construction of their sector of
the motorway, their occupation could not have been distinguished for rating
purposes from the occupation of the tenant of a house under a six months’
lease. United Gravel were actually the freeholders of the borrow-pit from which
they extracted their material, so that there could be no doubt that they were
not only in occupation of it but were in ‘permanent’ occupation of it so long
as they were working it. In many of the reported cases the ‘permanence’ or the
‘transience’ of the occupation was primarily relevant to the question of which
of two alternative persons should be regarded as the occupier of the land,
particularly where it is sought to establish occupation of the land, and
therefore rateable occupation, by proving that one of them has placed some kind
of temporary structure on the land. In such cases an advertising hoarding
resting on the surface of the ground or some fair-ground vehicle parked on the
land for short periods (Liverpool Corporation v Huyton Urban District
Council (1964) 10 RRC 256) may amount strictly in law to occupation of the
land so long as the hoarding or the vehicles are standing on it; but whether
such technical occupation amounts to rateable occupation will depend on the
precise facts of each case, in other words, it will be a matter of fact and degree.
But where there is no competing occupier, as in the case of a tenant under a
lease for six months, the time element becomes of much less relevance to
establishing liability to rates, although, of course, the shortness of the
occupation will be reflected in the assessment.
In my
judgment, therefore, it is a mistake to place too much emphasis in this context
on the words ‘permanence’ or ‘transience.’
They have become to some extent terms of art, and have lost their
ordinary meaning. It is worth noticing that between Laing’s case and London
County Council v Wilkins these words had acquired inverted commas in
the reports of some of their Lordships’ speeches. On the other hand, there are
many other passages, both in the judgments in Laing’s case and in the speeches
in Wilkins which indicate that to determine whether an occupation is
rateable or not regard must be had to all the qualities or characteristics of
the occupation: see in particular Laing’s case at p 356 and Lord
Kilmuir’s speech in Wilkins at p 374. Indeed, if we are to keep these
terms ‘permanence’ and ‘transience’ in perspective, reference must be made to
other passages in Lush J’s judgment in the St Pancras case. The learned
judge said at p 589:
I do not
agree with Mr Castle that the word ‘permanence’ is used in this class of cases
in the sense of being continuous as to its use, but I think it is used in the
sense of being permanently attached to the ground as a fixture. It would be an
abuse of language to say that the owner of a post lying upon the ground is
thereby occupier of the ground upon which the post rests, however long it may
be there; but if the post is inserted into the ground, or otherwise so attached
to it that it cannot be severed from the land without breaking up the soil, it
has become one with the soil, and the owner of the post is thereby occupier of
the soil to which it is annexed.
A little
earlier in his judgment he had said:
As the
poor-rate is not made day by day or week by week, but for months in advance, it
would be absurd to hold that a person, who comes into a parish with the
intention to remain there a few days or a week only, incurs a liability to
maintain the poor for the next six months.
That passage
is interesting. The learned judge is contrasting the concept of transience with
that of moral responsibility for the poor of the neighbourhood and therefore
liability to pay the poor-rate. In 1877 this linkage may have been quite
natural, but with the changing character of rates, its relevance has
disappeared.
For these reasons
I can see no escape from the conclusion that the Lands Tribunal misdirected
themselves in law by applying the wrong test of ‘permanence,’ and that had they
approached this question correctly, they must have held on this aspect of the
case that the occupation of the respondents of their respective borrow-pits was
rateable occupation. On the second part of this case, that is, on the point
raised by the respondents’ notice, Mr Trustram Eve is on stronger ground, at
least so far as Hamptons are concerned. He has argued that Hamptons’ use of
their borrow-pit was part and parcel of, and indistinguishable from, the
motorway construction work on which they were engaged. They were earth-movers,
and were engaged in an enormous ‘cut and fill’ operation, moving earth from the
cuttings and filling up the hollows with it. There was insufficient suitable
‘cut’ to complete the ‘fill,’ so they merely extended their earth-moving over
land immediately adjacent to part of the motorway site, in which they had found
suitable material for filling. They had merely, though on a large scale,
enlarged the ‘cut’ in that area of their operations. Consequently, the
borrow-pit should be regarded as part of the construction site, the occupation
of which, it is common ground, is not rateable. The layout in Hamptons’ case
gives some plausibility to this argument, but when it is applied to United
Gravel’s case, the difficulties in it become apparent. United Gravel were not
themselves actually engaged on any part of the construction site. They were,
however, an associated company of McAlpines, who were the subcontractors and
were supplying and processing the material from the borrow-pit for them under
an informal agreement. The fact remains, however, that United Gravel were in
occupation of and working this borrow-pit as freeholders, supplying their own
material to McAlpines from their own land. In their case it is impossible, in
my judgment, to regard their occupation of the borrow-pit as being anything but
a separate and distinct occupation from McAlpines’ or the Department of the
Environment’s occupation of the motorway site. In Hamptons’ case, the position
when looked at closely is the same. They too were working the borrow-pit on
their own account, supplying their material to the department in addition to
the ‘fill’ produced as part of the process of levelling the motorway site, and
processing it as might be necessary, receiving for it a different rate of
payment from that which was paid for work on the motorway site itself. In my
judgment, therefore, the tribunal’s decision on this part of the case was
right. In the result I agree that this appeal should be allowed.
The appeals
were accordingly allowed, and the valuation courts’ decisions restored, with
costs in the Court of Appeal and before the Lands Tribunal on the High Court
scale. Leave to appeal to the House of Lords was refused.
