Landlord and Tenant Act 1954–Whether provisions in Part II of the Act for the grant of a new tenancy applied to the demise for a seven-year term of a right of way to the appellants (a company engaged in waste disposal) over land belonging to the respondent council–Whether an incorporeal hereditament, such as an easement, can be ‘occupied’ within the meaning of section 23(1) of the Act–Review of earlier authorities–Meaning of ‘premises’–Held, upholding decision of Brightman J, that the right of way, which stood by itself and was not the subject of a more comprehensive demise including a corporeal hereditament, was not within the provisions of Part II of the Act for the grant of a new tenancy
This was an
appeal from a decision of Brightman J (1978) 246 EG 401, [1978] 1 EGLR 42 on a
preliminary point of law. The issue was whether a demise to the appellants, the
Land Reclamation Co Ltd, by the respondents, Basildon District Council, of a
right of way over land in the ownership of the council was a tenancy to which
Part II of the Landlord and Tenant Act 1954 applied. Brightman J held that it
was not.
Anthony
Scrivener QC, H A P Picarda and D A Lowe (instructed by Ellison & Co, of
Colchester) appeared on behalf of the appellants; Ronald Bernstein QC and C B
Priday (instructed by J L Knight, Basildon District Council Offices)
represented the respondents.
Giving
judgment, BUCKLEY LJ said: This is an appeal from a judgment of Brightman J
who, on a preliminary issue in an application for a new tenancy under the
Landlord and Tenant Act 1954, section 26, declared that the tenancy created by
a lease dated August 14 1970 between the respondent council as lessor and the
appellant company as lessee is not a tenancy to which Part II of that Act
applies. The respondents are the successors of the former Basildon Urban
District Council, but I shall describe those two local authorities as ‘the
respondents’ indifferently.
The appellants
carry on a business of disposing of waste, both domestic and industrial, on a
large area of land exceeding 1,000 acres at Pitsea in Essex. The respondents
are owners of other land adjoining the applicants’ land, and known as the Sea
Transport Depot; the respondents acquired that land from the Ministry of
Defence not long before the date of the lease in question. The only existing
vehicular access to the appellants’ land is along a private road of some
considerable length running over the respondents’ land from north to south,
from a point marked D on an exhibited plan to a point marked A upon it. When
the respondents’ land was in the ownership of the Ministry of Defence, the
appellants were licensed to use this road for the purposes of their business.
On August 14
1970 the respondents made the following grant of a right of way over the road;
the document is called a lease and I shall refer to it as ‘the lease.’ It is dated August 14 1970; it is made
between the respondents of the one part and the appellants of the other part;
it recites that the respondents are the owners in fee simple of the land at
Pitsea known as the Sea Transport Depot, which includes the road coloured red
on the plan attached to the lease, and that the company (that is, the
appellants) were estate owner in fee simple of land to the south-east of the
extreme point of the road, which provided the sole means of vehicular access to
and from the highway.
The operative
part of the document is in the following terms:
NOW THIS DEED
WITNESSETH as follows:–1. In consideration of the rent and covenants
hereinafter reserved and contained the Lessor hereby demises unto the Company
full right and liberty for them and their assigns their agents servants or
licensees to pass and repass with or without vehicles along the private road in
common with the Lessor its servants agents tenants and licensees and others
having a like right and liberty between the hours of 6 am to 8 pm Mondays to
Fridays and 6 am to 2.30 pm Saturdays (hereinafter called ‘the permitted
hours’) for all purposes in connection with the use of the Company’s land for
the dumping and disposal of waste materials Subject nevertheless to and
reserving unto the Lessor the right at all times hereafter or at any times or
time to erect renew and maintain a gate or gates across the said roadway at the
points marked ‘G’ on the said plan with all necessary fittings and fixtures but
so that the same shall not be locked or so erected or maintained as to impede
or obstruct the free use and enjoyment of the right and liberty of the way
hereby granted in accordance with the tenor hereof TO HOLD the same unto the
Company from the 25th March 1970 for the term of SEVEN YEARS paying therefor
unto the Lessor during the said term
advance on the usual quarter days in every year without any deduction the first
of such quarterly payments to be made on the signing hereof for the two
quarters ending 28th September 1970.
Then clause 2
contains lessees’ covenants, which include a covenant to make up part of the
road between the points marked A and B on the plan at the cost of the lessee
and to the satisfaction of the lessor’s surveyor, and to pay to the lessor the
cost to the lessor of putting another part of the road, between the points
marked B and C into proper state of repair, and to pay to the lessor
three-quarters of the cost to the lessor of maintaining during the first year
of the term granted, that part of the road between the points marked B and C,
and thereafter to pay in like manner a fair proportion according to user of the
lessor’s cost of maintaining during the remainder of the term of that part of
the road. There is a covenant by the lessee not to use the private road outside
the permitted hours without the previous consent of the lessor, and a covenant
by the lessee to use its best endeavours to prevent vehicles which call at the
company’s land from parking on any part of the private road or other part of
the land belonging to the lessor at the Sea Transport Depot; and there is a
covenant for peaceable enjoyment of the right given by the lessor. I need not
read any more of that document.
The use of the
road in question by the appellants is, and has always been, entirely for
business purposes. It has been a heavy use; we are told that the appellants’
lorries go down the road at the rate, on an average, of one every four minutes
during the permitted hours. There is no alternative access to the appellants’
land readily available; they do own other land adjoining the land on which they
carry out their tipping operations, but that land is land which is scheduled as
being of special scientific interest. They have made an application for
planning permission to construct a road across that other land; that
application has been refused by the local planning authority and at the present
time an appeal to the minister from that refusal is pending. Industrial waste
can only be brought to the appellants’ land where they carry out their tipping
operations by use of the road; it seems, however, that domestic waste can be
brought there by water.
On April 20
1976 the appellants applied, purportedly under section 26 of the Landlord and
Tenant Act 1954, for a new tenancy of the right of way; on June 14 1976 the
respondents served a counternotice under the Act giving as their grounds for
refusing a new tenancy: ‘(i) That on the termination of the current tenancy the
Council or landlord intends to carry out substantial work on the holding or
part thereof and that the Council as landlord could not reasonably do so
without obtaining possession of the holding; (ii) That on the termination of
the tenancy the Council as landlord intend to occupy the holding for the
purposes or partly for the purposes of a business to be carried on by them
therein.’ That notice was served without
prejudice to a contention by the respondents that the lease was not within the
Act.
On the
application of the respondents the proceedings were transferred from the county
court into the Chancery Division, and the following question was in due course
directed to be tried as a preliminary issue, namely, ‘. . . whether the tenancy
created by the lease made the 14th August 1970 is a tenancy to which Part II of
the Landlord and Tenant Act 1954 applies. . . .’ That matter came before Brightman J in
December 1977. The respondents first submitted that the legal relationship
between the respondents and the appellants was that of licensor and licensee
and not that of landlord and tenant. The judge rejected that argument, saying
at H on p 1165 of Land Reclamation Co Ltd v Basildon District Council
[1978] 2 All ER 1162, where his decision is reported: ‘. . . it seems to me
clear that the local authority granted to the company a legal easement for a
term of years and not a mere licence.’
There is no appeal from that decision, and although I would not wish to
be taken to decide that on its true interpretation the lease amounted to a
grant of an easement for an interest equivalent to a term of years absolute, I
proceed upon the footing, for the purposes of this judgment, that that is its
effect.
The judge went
on to consider whether upon that basis the lease came within the terms of the
operation of the Act. He said: ‘In ordinary speech, a right of way is not a
possible subject matter of occupation as distinct from user, nor is it easy in
normal circumstances to say that a road is occupied by a person who has a mere
right of way thereover.’ He went on to
discuss certain provisions of the Act and certain authorities, and reached the
conclusion, at p 1167 of the report, at the end of the judgment: ‘In my
judgment, the company uses the roadway for the purposes of its business but it
does not occupy either the easement or the roadway. I take the view that Part
II of the 1954 Act has no application to a mere right of way standing by
itself, because such a right is not property or premises capable of being
occupied for the purposes of a business, or indeed for any other purpose,’ and
he accordingly made the declaration appealed against.
Part II of the
Landlord and Tenant Act 1954 is the part of the Act which deals with security
of tenure for business, professional and other tenants; section 23(1) provides
that: ‘Subject to the provisions of this Act, this Part of this Act applies to
any tenancy where the property comprised in the tenancy is or includes premises
which are occupied by the tenant and are so occupied for the purposes of a
business carried on by him or for those and other purposes.’ Mr Scrivener has contended that the Act
should be construed as though ‘use’ and ‘occupy’ were interchangeable terms.
The appellants undoubtedly made use of the right of way; therefore, he says,
they occupied it for the purposes of the Act. He points out that in the
Landlord and Tenant Act 1927, section 17, the holdings to which Part I of that
Act (which relates to business premises) applies, are premises ‘held under a
lease . . . and used wholly or partly for carrying on thereat any trade
or business.’ He suggests that those
words are apt to extend to incorporeal rights used for carrying on a trade or
business and that it would be unlikely that the 1954 Act was intended to be
more restricted in its operation.
In my judgment
that argument misconstrues the 1927 Act. Part I of that Act deals with
compensation for improvements and goodwill on the termination of tenancies of
business premises. Section 4 deals with compensation for goodwill; the tenant
is entitled to compensation ‘if he proves to the satisfaction of the tribunal
that by reason of the carrying on by him or his predecessors in title at the
premises of a trade or business for a period of not less than five years,
goodwill has become attached to the premises’ and so forth. It is clear in my
judgment from the use of the words ‘at the premises’ and ‘attached to the
premises’ that the Act here relates to physical property–land or buildings–and
not to incorporeal rights. Section 5 refers to the tenant removing to or
carrying on his trade or business ‘in other premises’ and to the grant of a new
lease ‘of the premises at which the trade or business is carried on.’ The same observation applies there. And in
section 17 itself, to which I have already referred, the use of the word
‘thereat’ has in my opinion a similar significance.
These sections
were considered in Stumbles v Whitley [1930] 1 KB 393, in this
court. In that case an hotel had been let under a lease which also included the
fishing rights in a water known as the Lower Ley, and the property demised was
described as
‘all that
messuage or tenement and premises known as the Royal Sands Hotel, Slapton,
aforesaid, . . . together with the exclusive right at all times between March 3
and November 1 in each year of the tenancy (such period being hereinafter termed
the summer fishing) of fishing the water known as the Lower Ley from Slapton
Bridge,’ within specified limits, ‘and, secondly, the exclusive right of
fishing at all times . . . between November 2 and March 2 in
certain limits ‘. . . to hold unto the tenants for the term of seven years from
March 25 1922, . . . yielding and paying during the said term in respect of the
first hereinbefore described hereditaments the yearly rent of £110 . . . and in
respect of the fishing rights secondly hereinbefore described the yearly rent
of £55.’
The plaintiff,
as the tenant under that lease, required the grant of a new lease under section
5 of the 1927 Act. The question for decision was whether the new lease should
include the fishing rights and it turned upon the meaning of the word
‘premises’ in section 17. Scrutton LJ stated the landlord’s contention at p 399
in this way: ‘The argument addressed to us is that the Act applies only to
‘premises’ held under the lease; that fishing rights are not ‘premises,’ as the
right to extract fish from Slapton Ley is not a building; that ‘premises’ are
buildings or structures. Consequently, it is said, the tenant is only entitled
to obtain a new lease of the buildings or structures, and not of the mere right
to take something from the soil.’ He
held on construction that contrary to that argument, ‘premises’ meant the
subject matter of the lease and that accordingly the Act extended to the whole
subject-matter comprised in it, both the hotel and the fishing rights. He also
relied on an alternative ground of decision at the end of his judgment, where
he said: ‘It may be put in another way which will limit it to this case
probably. It may be said that the subject matter of this lease is the hotel,
but it is the hotel with certain rights attached to it, and that the new grant
should be of the same subject matter–namely, the hotel with those rights.’ That construction also concords with the view
I take in considering the purposes of the Act.
Greer LJ
decided the case on Scrutton LJ’s alternative ground. He said, at p 401: ‘. . .
but I gravely doubt whether the term ‘premises’ would cover a separate and
distinct lease of an incorporeal hereditament’; and at the end of his judgment
he said that he desired to reserve his opinion on the question which might
possibly arise thereafter, namely, whether a bare lease of fishing rights came
within the Act.
Slesser LJ
decided the case on the ground that the word ‘premises’ should be given what he
called its ordinary meaning, by which he evidently meant that it referred to
the parcels comprised in the lease, but that even if it should be given the
narrower construction, meaning the land and erections upon the land, the
incorporeal rights should not be excluded from the new lease. On these grounds
the court affirmed the decision of the Divisional Court to the effect that the
fishing rights formed part of the premises demised and therefore that the
fishing rights should be included in the new lease.
The case went
to the House of Lords and is reported in [1930] AC 544. All the other learned
Lords agreed with the speech of Viscount Hailsham. After reviewing certain
sections of the Act, Lord Hailsham said at p 547:
It is
conceded–indeed it must be conceded–that the word ‘premises’ does not mean only
buildings; it means also at least the land on which the buildings are erected
and the land immediately surrounding the buildings, and yet the expression
‘pull down or remodel the premises’ would be wholly inept for such a purpose.
It was conceded in argument also that it must include some incorporeal
hereditaments such as, for instance, easements. When one gets that concession,
which I think was quite properly and necessarily made, then it is manifest that
although the word ‘premises’ is being used in a narrow sense to this extent
that the Legislature is at times contemplating rather the buildings in which
the trade is carried on than the whole of the subject-matter of the lease, yet
it does not intend to exclude other things which are properly described as
premises in the strict legal sense when it is appropriate that they should be
included. When we look at section 17, the definition section, and we find the
reference to ‘any premises held under a lease,’ I see no sufficient reason for
supposing that the Legislature did not there include not merely the actual
buildings in which a trade is carried on, but also the land surrounding them,
the easements granted as appurtenant to them, and any other incorporeal
hereditaments which may form part of the premises in the strict legal sense of
the term which are the subject-matter of the habendum. Any other construction
would, it seems to me, defeat the plain purpose of the Act, which obviously was
to provide that in the circumstances defined in the Act the tenant should have
a right to continue to carry on his trade or business in the premises in the
legal sense in which he was carrying them on under the lease for which he seeks
that renewal.
So the case
was decided on the ground that ‘premises’ in that context signified what Lord
Hailsham called the subject-matter of the habendum, that is to say, the parcels
to which the habendum applies as a whole. He went on, however, to say:
. . . I
desire to add that, while that is sufficient to decide this case, I do not wish
to be understood as accepting the view that if the profit a prendre here
included had not formed part of the premises within section 17, the referee or
the county court judge would have had power to compel the appellant to grant a
lease of those rights as a condition of the grant of a new lease, which I
understand to be the second ground upon which the judgment of the Court of
Appeal is based. It is sufficient for me to say that, in my judgment, the first
ground on which Lord Justice Scrutton relies disposes of the case, and that I
agree entirely with the conclusion which he has reached on that point.
He was there,
I think, reserving his position on the point upon which Lord Justice Greer had
also voiced reservations; that is, whether, if the incorporeal hereditament had
been created independently of the corporeal hereditament comprised in the
lease, the former would have been within the Act.
Lord Denning
MR has by way of obiter dictum expressed a similar doubt in relation to
the 1954 Act in the case of Jones v Christy (1963) 107 SJ 374.
The case was decided on April 30 1963, and is also to be found in transcript no
119 of the collection of Court of Appeal judgments for that year. At p 4 of the
transcript Lord Denning said this: ‘If the letting were solely of an
incorporeal hereditament, such as the right to fish, I doubt whether the Act
would apply to it. When the Act speaks of ‘premises’ being ‘occupied’ it may
well refer to corporeal hereditaments and not to incorporeal hereditaments.’
I return to
consider the terms of the 1954 Act, accepting that the expression ‘premises’
should be construed as meaning all the property demised unless the context
otherwise requires. Part II of that Act applies under the terms of section 23,
‘ . . . where the property comprised in the tenancy is or includes premises which
are occupied by the tenant and are so occupied for the purposes of a business
carried on by him or for those and other purposes.’ So it will apply when part only of the whole
property comprised in the lease is occupied by the tenant for business purposes.
This may occur where the tenant uses some part of the property comprised in the
lease for purposes other than business purposes; or it might occur where some
part of the property comprised in the lease was, by its incorporeal nature,
incapable of occupation.
Section 32
specifies what property shall be comprised in a new lease where an order is
made for the grant of a new tenancy. Subsection (1) of that section, as
amended, now reads:
Subject to
the following provisions of this section, an order under section twenty-nine of
this Act for the grant of a new tenancy shall be an order for the grant of a
new tenancy of the holding; and in the absence of agreement between the
landlord and the tenant as to the property which constitutes the holding the
court shall in the order designate that property by reference to the
circumstances existing at the date of the order.
To discover
what is meant by ‘the holding,’ one must go to section 23 (3):
In the
following provisions of this Part of this Act the expression ‘the holding,’ in
relation to a tenancy to which this Part of this Act applies, means the
property comprised in the tenancy, there being excluded any part thereof which
is occupied neither by the tenant nor by a person employed by the tenant and so
employed for the purposes of a business by reason of which the tenancy is one
to which this Part of this Act applies.
The exclusion
in that subsection might operate because some part of the property was in the
occupation of somebody other than the tenant or an employee of his employed in
the relevant business; or it might operate because some part of the property
was by its incorporeal character incapable of occupation. This would not result
in the incorporeal rights enjoyed by the tenant in connection with the holding
under his current tenancy being omitted from any new tenancy granted under the
Act, for section 32 (3) provides that
Where the
current tenancy includes rights enjoyed by the tenant in connection with the
holding, those rights shall be included in a tenancy ordered to be granted
under section twenty-nine of this Act (except as otherwise agreed between the
landlord and the tenant or, in default of such agreement, determined by the
court.
That
subsection is couched in language equally appropriate to a case in which the
rights in question were created by the document creating the tenancy as to a
case in which they arose by other means. The word ‘occupy’ is not one, in my
opinion, which according to its normal meaning in the English language is apt
to describe the enjoyment of some incorporeal right such as an easement of way.
It may possibly be more suited to describe the enjoyment of some proprietary
right such as a riparian owner enjoys in relation to a river which flows past,
or through, his property.
In Brown
v Peto [1900] 2 QB 653, at p 664, Vaughan Williams LJ said: ”Occupy’ is
a word which in one form or another is not infrequently used of an incorporeal
hereditament. Eviction, which presupposes occupation, is a term employed in
respect of tithe.’ He was then
considering whether a lease which included a house and land and also sporting
rights over other land was an ‘occupation lease’ within the Conveyancing Act
1881, section 18; he was considering an incorporeal right, but not an easement.
Nor, of course, are tithes analogous to an easement. In my judgment
‘occupation’ is not an appropriate word to describe the enjoyment of a right of
way unless the context demands such a construction. The provisions which I have
so far discussed do not appear to me to do so.
It may be that
if the right of way were an exclusive right, the circumstances might result in
the exercise of the easement amounting to occupation of the land over which it
passes (see Holywell Union and Halkyn Parish v Halkyn District Mines
Drainage Co [1895] AC 117), but that is not this case. The right of way in
the present case is not exclusive; it is not even continuous, being limited to
certain hours of certain days.
Other
provisions of the Act appear to me to be more consistent with the view that an
incorporeal right is not such a right as can be ‘occupied’ within the meaning
of the Act. Section 63 (2) provides as follows: ‘Any jurisdiction conferred on
the court by any provision of Part II of this Act . . . shall, subject to the
provisions of this section, be exercised, (a) where the rateable value of the
holding is not over the county court limit by the county court; (b) where it is
over the county court limit by the High Court.’
An incorporeal
hereditament is not rateable per se: see Ryde on Rating, 13th ed,
p 153, where the position is stated thus: ‘Under the General Rate Act 1967 the
person made liable is the ‘occupier of lands, houses’ etc. Incorporeal rights
such as easements, tolls and rights of common, are not, per se, rateable. Such
rights only become rateable if the exercise and enjoyment of them necessarily
involves the exclusive occupation of land, or if, as in the case of sporting
rights and advertising rights, they are made rateable by the statute.’ Only if the exercise of the right amounts to
the rateable occupation of some physical hereditament can anyone be rateable in
respect of it, and he would then be rateable in respect of the physical
hereditament and not of the easement or right.
Section 37 of
the Act deals with the position when the grant of a new tenancy is
inappropriate, and with what compensation should then be paid to the tenant.
Subsection (2) provides as follows: ‘The said amount’–that is, the amount of
the compensation–‘shall be as follows, that is to say–(a) where the conditions
specified in the next following subsection are satisfied it shall be twice the
rateable value of the holding, (b) in any other case it shall be the rateable
value of the holding.’ Subsection (5)
provides: ‘For the purposes of subsection (2) of this section the rateable
value of the holding shall be determined as follows,’ and then paragraph (a)
deals with the position when there is a value entered in the valuation list;
paragraph (b) deals with the position when no value is so entered in respect of
the holding itself, and provides: ‘Where no such value is so shown with respect
to the holding but such a value or such values is or are so shown with respect
to premises comprised in or comprising the holding or part of it, the rateable
value of the holding shall be taken to be such value as is found by a proper
apportionment or aggregation of the value or values so shown.’ Paragraph (c) is in these terms: ‘Where the
rateable value of the holding cannot be ascertained in accordance with the
foregoing paragraphs of this subsection, it shall be taken to be the value
which, apart from any exemption from assessment to rates, would on a proper
assessment be the value to be entered on the said valuation list as the annual
value of the holding.’ That implies, in
my view, that apart from any exemption the hereditament would have an
assessable rateable value proper to be entered in the valuation list, but an
easement can have no such value.
There are a
number of places in the Act where the expression ‘use or occupation’ is used.
Examples will be found in section 57 (1), section 58, section 60; and in
section 41 there is a reference to ‘use, occupation or enjoyment.’ These might not be incapable of being read as
though the two words ‘use’ and ‘occupation’ were interchangeable if the context
of the rest of the Act required this; but otherwise in my opinion they point in
the contrary direction.
We were
pressed by Mr Scrivener with the decision in this court in Lee-Verhulst (Investments)
Ltd v Harwood Trust [1973] 1 QB 204. That case was concerned with
a building which had been adapted for occupation as furnished apartments; it
was owned by a company, and a gentleman who was, I think, the sole director of
the company, lived on the premises in the basement and supervised all the
activities of the business in the house. The apartments were let and services
were provided by the plaintiff company to the tenants, which services included
the provision of light meals if required, the services of maids to clean the
rooms and so forth. The resident director exercised a considerable degree of
supervision over the activities of tenants and the way in which the business
was conducted in the house, and the question was whether the plaintiff company
could be regarded as being in occupation of the house for the purpose of
carrying on its business or whether, having regard to the undoubted fact that
the apartments were occupied by the tenants for residential purposes, that was
inconsistent with the view that the house was in the occupation of the company.
Sachs LJ, at p
213, said this:
Thus one
comes to the critical issue–were the premises ‘occupied’ by the tenant for the
purpose of that business?
–by ‘the
tenant’ he is referring to the company.
The tenant
company must of course be taken, when considering this question, as being
represented on the premises by Mr Lee and the staff he engaged: the position in
practice being no different than if Mr Lee had himself been the tenant. By Mr
Lee and the staff the tenant company were present in the premises for the
purpose of the business day and night; in the course of their services to the
occupants they pervaded every room there; control was exercised by Mr Lee over
the manner in which the occupancies were conducted–a control (eg by limitations
over the cooking that was permitted and over who could stay in each apartment)
of a degree much beyond that usual when a flat is let to a tenant on a normal
lease: and in addition the tenant company’s furniture was in every room.
Is there
anything in the Act of 1954 which precludes the court from giving to the word
‘occupied’ in section 23 its natural and ordinary meaning in the context of the
subject matter of that Act–a meaning which would in the set of circumstances
above des-
for the purpose of the business? Being
unable to find anything in the Act which so precludes the court, I have come to
the conclusion that this tenant did so occupy the whole of the premises.
On p 214 the
learned Lord Justice referred to the question of whether it was right to adopt
a broad approach to the word ‘occupy;’ he said, just below E: ‘It can, however,
be said with confidence that such an approach is consistent with the above-noted
changes in the phraseology. It is, moreover, the tendency in recent statutes to
use ‘occupied’ with the express intention of avoiding technical distinctions
between leases and licences.’
On p 215, just
above D, Sachs LJ said:
Having come
to that conclusion it seems none the less as well to say that despite the fact
that ‘rent books’ were in use, the occupants were in my view licensees entitled
to exclusive residential occupation of their apartments–rather than subtenants.
In case, however, that is not correct and they were subtenants and (again
contrary to my view) it became thus necessary to turn the decision here on
whether the tenants and occupants technically shared the occupation of the
apartments, I would hold there was here a shared occupation–the latter having
exclusive residential occupation, the former having such occupation as was
required for purposes of the business.
Stamp LJ (p
217 at D) said: ‘As Sachs LJ has pointed out and as a glance at Stroud’s
Judicial Dictionary will show, the words ‘occupation’ and ‘occupier’ are
not words of art having an ascertained legal meaning applicable, or prima
facie applicable, wherever you find them in a statute, but take their
colour from the context of the statute in which they are found.’
The facts of
that case were very far from the facts of the present case. There is nothing
there, I think, to support the contention that such violence should be done to
the normal meaning of the word ‘occupy’ as I think is necessary to make it
applicable to a right-of-way. The problem to which the court there had to
address its mind was whether the company’s activities were such as to amount to
occupation for the purposes of its business, and whether such occupation was
negatived by the concurrent occupation of the apartments by the subtenants for
residential purposes, and I do not think, in considering that problem, the
learned Lord Justices had at all in mind the kind of problem with which we are
confronted in the present case.
Finally Mr
Scrivener contended that enjoyment of the right of way could result in
occupation of the road over which the right of way exists, within the meaning
of ‘occupied’ in section 23 (1) of the Act. An occupier of land may be rateable
in respect of that land, his occupation being the result of the exercise of
some incorporeal right over or in respect of the land, as was decided in the Holywell
case to which I referred earlier. But the incorporeal right itself is not
rateable. To make the occupier rateable at all, his occupation must, I think,
amount to exclusive occupation of some land, as was held to be the case in the Holywell
decision; and see also Kittow v Liskeard Union (1874) LR 10 QB 7;
and Westminster City Council v Southern Railway [1936] 2 All ER
322. Whether the so-called occupier’s occupation is sufficient to make him
rateable must be a question of fact and degree. It has not been established in
the present case that this intermittent and non-exclusive right of way has been
enjoyed in a manner amounting to exclusive occupation of the road. But even if
this were so, it would not, I think, avail the appellants. The road is not part
of the property comprised in the lease; it is not within the premises which are
referred to in section 23 (1). So whether the road is or is not ‘occupied’ by
the appellants is irrelevant to the subsection. Mr Scrivener was, I think,
eventually constrained to accept that this was so.
For these
reasons and in spite of a valiant argument presented to us by Mr Scrivener, I
am satisfied that the learned judge reached the right conclusion, and I would
dismiss this appeal.
SHAW LJ
delivered a concurring judgment and BRANDON LJ agreed.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.