Water rates payable by occupiers of shop in shopping centre though water supplied only to the centre’s communal lavatories and not directly piped into the shop–‘Growing problem’ which the legislature might well re-examine
This was an
appeal by Jon Migael (North West) Ltd, occupiers of an outfitters’ shop and
storeroom at the Arndale Centre, Middleton, Lancashire, from a judgment of
Judge Bailey at Manchester County Court in March 1974 holding the respondents,
the West Pennine Water Board, entitled to recover £48 in respect of water rates
claimed on the premises for two years from October 1971.
Mr A R C
Kirsten (instructed by K Meredith, of Middleton) appeared for the appellants,
and Mr A J Balcombe QC and Mr H K Goddard (instructed by Bromley, Hyde &
Robinson, of Ashton-under-Lyne) represented the respondents.
Giving
judgment LORD DENNING said that the Arndale shopping centre comprised 50-60
shops around a central area in which shoppers could walk, both on the ground
floor and above. None of the shops had water supplied directly by pipes, but
each had a contractual right to use communal lavatories in the centre. Jon
Migael, who occupied one of the shops, said that they should not be assessed to
water rate because they had no piped water coming into their shop. They went
across to a communal lavatory. They took tea and coffee in flasks from home.
The board said that as a matter of practice and convenience such shops were
liable to be assessed for water rates on their rateable value.
The point had
come up fairly often. In Taunton there was an office block, Lloyds Bank
Chambers, with sets of offices with no separate water pipes but with the right
to use communal lavatories, and Judge Paton in Taunton Corporation v Broomhead
& Saul (Taunton County Court, November 23 1964) had held that the
occupiers were rightly assessed to water rates. The question depended upon the
interpretation of section 38 (2) of the Water Act 1945, by which water rates
were made payable by ‘the occupier of premises,’ and upon the wording in
section 31 (1) of the West Pennine Water Order 1968 (SI 1968 No 512), ‘The
board may, in respect of water supplied to any premises for domestic purposes,
charge a water rate. . . .’ Reading that
provision as a layman, a shopkeeper in a centre such as that under
consideration might well say that since there were no pipes leading to his
premises, no water was supplied to them. There was no definition of premises in
the order, but by section 59 of the Water Act ‘premises’ included ‘land,’ which
in turn included ‘any interest in land and any easement or right in, to or over
the land.’ In this case, in the order as
in the Act, the word ‘premises’ referred not only to the physical premises,
such as the shop, but to all rights and easements appurtenant to it. The right
to use the lavatories was in the nature of an easement: see Miller v Emcer
Products Ltd [1956] Ch 304. Applying the reasoning of Judge Paton, where
the order spoke of ‘water supplied to any premises’ it meant supplied to the
occupier of the premises for use in connection with those premises by virtue of
a right appurtenant to them. The water was supplied to the occupiers of the
shop for use in connection with the shop by virtue of a right appurtenant to the
shop. In the circumstances, the supply came within the ambit of the words
‘water supplied to any premises for domestic purposes,’ and water rate was
accordingly to be charged on the rateable value of the shop even though
inequalities might arise. The appeal should be dismissed.
ORR LJ agreed.
Also agreeing,
SCARMAN LJ said that as a matter of property law the premises occupied were the
physical building of the shop plus the rights appurtenant. When in the relevant
legislation the legislature gave an indication as to the meaning of ‘premises’
it included appurtenant rights. As Judge Paton had said in the Taunton
case:
‘The test. .
. is not whether water is carried to a particular part of a building which is
in the occupation of the person sought to be charged………but whether water
is supplied in such a way that it is available to be taken or used by an
occupier of a part of a building by virtue of his occupation………’
The facts of
this case and the underlying problem of justice, or rough justice, as it had
been called, indicated a growing problem. Shopping centres of communal areas in
multiple occupation but in private ownership were becoming common. It might be
that Parliament and the central department of government concerned should look
at the way in which the burden of paying for water supply should be apportioned
as between tenants occupying shops and landlords who provided in such centres
such communal facilities as lavatories and other conveniences in which water
might be provided for the use of tenants and the public.
The appeal
was dismissed.
