Respondent sporadically tipping at site – Justices dismissing application for liability for non-domestic rates – Whether respondent in occupation of tip – Whether occupation exclusive – Appeal dismissed
In 1997 the appellant local authority laid a complaint against the respondent, in that it was liable for non-domestic rates in respect of use of a tip, pursuant to the Local Government Finance Act 1988 and the Non-Domestic Rating (Collection and Enforcement)(Local Lists) Regulations 1989. On 28 October 1997 the magistrates’ court held that the respondent was not liable. It was found as fact, inter alia, that for material to be deemed suitable for tipping, prior approval was needed from the owner of the tip. There was no tipping contract evidenced in writing between the owner and the respondent.The owner’s employees exclusively had the right to and did in fact determine whether a load was tipped on each occasion. The justices were of the opinion that “there was actual occupation of the hereditament by the respondent in that it was a tip and was used as such by the respondent the occupation was beneficial and was not too transient”. However, the justices found that occupation was not exclusive; “there was no written contract or agreement giving the respondent the exclusive right to tip the owners would have been within their rights allowing other persons to tip in addition, the control of the owner was found to be so great as to interfere with the respondent’s occupation”. The appellants appealed against the justices’ decision on the ground that, on the facts as found, they could not conclude that the occupation was not exclusive, thus the respondent was liable for payment of non-domestic rates.
Held: The appeal was dismissed.
1. Against the factual background, no other contractual relationship, other than one of individual agreements, existed between the respondent and the owner. Such a situation was distinguished from that in Westminster City Council v Southern Railway Co Ltd [1936] AC 511 and John Laing & Son v Kingswood Area Assessment Committee [1949] 1 KB 344, where there were clear agreements upon which occupancy could be founded, and it was the control exercised over those agreements that was called into question. On that basis, the justices were bound to conclude that any occupancy was not exclusive in the sense required to give rise to liability on the respondent’s part.
2. The justices erred in finding that there was any actual occupation. The mere fact that a person spasmodically tipped on another person’s land under the sort of control that existed in the present case, did not mean that the tipper was in actual occupation of the land. It was not sufficient for the justices simply to conclude that “it was a tip and it was used as such by the respondent” to establish actual occupation. The appellant therefore had failed to establish both actual occupation and the necessary element of exclusivity.
Christopher Boyle (instructed by the solicitor to Thurrock Borough Council) appeared for the appellants; Phillip Coppel (instructed by TA Capron & Co, of Grays) appeared for the respondent.
Sarah Addenbrooke, barrister
