Rating — Vessel permanently moored alongside Victoria Embankment — ‘Hispaniola’, run as a restaurant by respondents, the Yard Arm Club Ltd — Whether respondents liable to pay rates as occupiers of any, and if so what, rateable hereditament — Chattels in general not rateable — Whether vessel rateable under any other description, such as in occupation of river bed or embankment or both — Central London Valuation Court and Lands Tribunal held that proposal to rate vessel was invalid — Appeal from Lands Tribunal decision dismissed by Court of Appeal
Hispaniola, formerly a River Clyde steamer, is moored by two steel piles,
called ‘dolphins’, fore and aft alongside Thames Victoria Embankment — Each
dolphin is embedded in the river bed and the vessel is also anchored to it — It
is also connected to the embankment wall and is joined up with all the main
services — The vessel has no engine and can move only by being towed — The
river bed is owned by the Port of London Authority, from which the club had a
licence for the location of the vessel — The attachment to the river wall was
by agreement with the GLC (later the London Residuary Body) — The valuation
officer had proposed a valuation of £11,000 gross value, £9,138 rateable value,
reflecting the values of lands, gangway, dolphins, mooring etc, thus valuing
the vessel as the hereditament or at least one element in a composite
hereditament — The Lands Tribunal upheld the ruling of the valuation court that
the proposal was invalid and stated a case for the Court of Appeal
of Appeal Lloyd LJ, having referred to the guiding principles mentioned by
Nicholls LJ in R v Northamptonshire Local Valuation Court, ex parte Anglian Water
Authority, expressed himself as in complete agreement with the views of the
Central London Valuation Court and the Lands Tribunal in the present case that
the proposal was invalid — He rejected a suggestion that the words ‘and
premises’ in the description ‘restaurant and premises’ preserved the validity
of the proposal; the description referred only to the use of the vessel, which
was not a rateable hereditament in itself — He then considered a number of
authorities which showed that a chattel, although not itself rateable, might
become rateable if it occupied land or was enjoyed with land — Examples from
the cases were moorings, builders’ huts, a coal tip and a caravan — The
question was, assuming that the Hispaniola in the present case occupied land,
what land did it occupy?
suggested, in the light of the authorities, that the vessel could be regarded
as occupying the embankment or the river bed or both the embankment and the
river bed — Apart from the possible difficulty in the concept of the lateral
occupation of a wall by a chattel, such authority as there was suggested that
the vessel did not occupy the embankment in any relevant sense — As regards the
river bed, it was vested in the Port of London Authority and was by statute not
rateable — If the vessel was treated as occupying the river bed it was no more
rateable than the river bed itself — If the view were right that the Hispaniola
could be treated as occupying the embankment as well as the river bed, or at
any rate as being enjoyed along with the embankment, the proposal would still
be invalid; the fact that the description includes land which is rateable does
not save the proposal if the description also includes land which is exempt
The following cases are referred to in
this report.
Camden London Borough Council v Herwald [1978] QB
626; [1978] 3 WLR 47; [1978] 2 All ER 880; [1978] EGD 860; (1978) 246 EG 823,
[1978] 1 EGLR 107, CA; reversing [1977] 1 WLR 100, DC
Cory v Bristow (1877) 2 App Cas 262,
HL
Dymock v Showell’s Brewery Co Ltd (1898)
79 LT 329; 15 TLR 12, CA
Field Place Caravan Park Ltd v Harding [1966] 2 QB
484; [1966] 3 WLR 198; [1965] 3 All ER 247; (1966) 64 LGR 399, CA
London County Council v Wilkins (VO) [1957]
AC 362; [1956] 3 WLR 505; [1956] 3 All ER 38; (1956) 1 RRC 88; 49 R&IT 495,
HL
Mersey Master Mariners’ Club v West Derby Assessment
Committee (1951) 44 R&IT 358
Overseers of the Poor of Manchester v Headlam and London &
North Western Railway Co (1888) 21 QBD 96, HL
Peak v Stacey [1965] EGD 292; (1965)
195 EG 775; [1965] RVR 559; [1965] JPL 681; 11 RRC 251; [1965] RA 363
R v Northamptonshire Local Valuation
Court, ex parte Anglian Water Authority [1991] 1 EGLR 171; [1991] 05 EG
138; [1990] RA 93
Ryan Industrial Fuels Ltd v Morgan (VO) [1965] 1
WLR 1347; [1965] 3 All ER 465; [1965] 63 LGR 497; [1965] RVR 527, CA
Thomas (VO) v Witney Aquatic Co Ltd [1973]
EGD 750; (1972) 225 EG 101 & 226 EG 1222; [1972] RA 493
Whenman v Clark [1916] 1 KB 94
This was a case stated by the Lands
Tribunal for the decision of the Court of Appeal on the preliminary question of
law whether the proposal to include in the valuation list the hereditament
described as the ‘Restaurant and premises’, being ‘vessel ‘Hispaniola’ Victoria
Embankment’ was invalid, as had been held by the Central London Valuation Court
and the Lands Tribunal. The case stated in fact posed four questions for the
tribunal, which are set out in the judgment of Lloyd LJ. The appellants were
Westminster City Council; and the respondents, in addition to the valuation
officer, R W Woodbury ARICS, were the Yard Arm Club Ltd, which runs the
restaurant, Hispaniola. The decision of the Lands Tribunal (V G Wellings QC) is
reported at [1990] 1 EGLR 237; [1990] 18 EG 109.
Patrick Ground QC and Richard Hone
(instructed by G M Ives, city solicitor and secretary, Westminster City
Council) appeared on behalf of the appellants; William Hunter (instructed by
Blakeneys) represented the Yard Arm Club Ltd; the valuation officer was not
represented.
Giving judgment, LLOYD LJ said: We
might have taken time to consider our judgment in this case, since it raises a
number of interesting and quite difficult questions. But as we have formed a
clear view as to the outcome, we propose to give our judgments straightaway.
The case concerns the vessel
‘Hispaniola’, which is moored alongside the Victoria Embankment at the foot of
Northumberland Avenue. The vessel is permanently moored to the river bed by
twin vertical dolphins. It is run as a restaurant by the second named
respondents, the Yard Arm Club Ltd, to whom I shall refer simply as ‘the
respondents’.
The underlying question in the case is
whether the respondents are liable to pay rates as occupiers of any, and if so
what, rateable hereditament. But there is a preliminary question whether the
proposal to include the hereditament in the valuation list is invalid. The
proposal is dated as long ago as March 8 1982. The description of the
hereditament in the proposal is ‘Restaurant and premises’. The address is given
as ‘Vessel ‘Hispaniola’ Victoria Embankment’. The gross value was given as
£11,000, the rateable value as £9,138.
On December 27 1986 the Central London
Valuation Court held that that proposal was invalid. The reason given was as
follows:
The proposal describes a property which
is manifestly a vessel, and so not apparently rateable by itself. The Valuation
Officer suggested that the inclusion of the word ‘premises’ in the terms
‘restaurant and premises’ included the surrounding gangways, entranceways, etc
and so implied a hereditament on land, or using land, which was rateable.
However, it is clear to the court that
the description refers only to the use of the vessel, which is not a rateable
hereditament itself, and does not describe rateable land or a rateable use of
land. That the hereditament is land or the use of land must at least be clear
from the proposal, and it is not. The Court has therefore to find the proposal
invalid.
The valuation officer appealed against
the decision by notice dated January 16 1987. The appeal came before Mr V G
Wellings QC, the president of the Lands Tribunal. On July 6 1989 the Lands
Tribunal upheld the decision of the Valuation Court on this preliminary point.
The Lands Tribunal was then asked to state a case for the decision of the Court
of Appeal.
We are, of course, bound by the facts
stated in the case, whether found or agreed, so it is as well that I should set
them out at this stage. Since they are short and clear, there is no need to summarise
their effect.
1
The vessel ‘Hispaniola’ is moored alongside the Victoria Embankment at
the bottom of Northumberland Avenue and almost opposite the Embankment
underground station. It is situated between Hungerford railway bridge (leading
to Charing Cross mainline station) and Westminster Bridge.
2
The vessel is moored to two steel piles, called dolphins, fore and aft.
Each dolphin is embedded in the river bed. To each dolphin the vessel is
connected by steel ‘horns’ which permit the vessel to rise and fall with the
tide but prevent forward or rearward or lateral movement. The vessel is also
anchored to the river bed, fore and aft. From each anchor chain a subsidiary
and smaller gauge chain goes to the embankment wall.
3
The vessel has no engine and is incapable of being moved without towage.
It was formerly a steamer on the River Clyde. It was built in 1953 and is 165
feet long. It has been at its present location since 1975 and has since then
been used as a restaurant ship. The vessel has three decks as follows:
(1) The main deck, which comprises a restaurant
with seating capacity for 170 people and also a bar. On the port side there is
a promenade deck with seating.
(2) Below that deck, the upper deck, which is
principally used as a private function room or restaurant with seating capacity
for 80 people. There are open deck spaces fore and aft with seating.
(3) Below that, the lower deck which consists of
storage areas and public toilets.
4
The vessel is permanently connected to all main services including gas,
electricity, water, telephone and main drainage (pumped from the vessel). The
main and upper decks have full air conditioning and double glazing.
5
Customers of the restaurant obtain access to it through an entrance on
the Victoria Embankment and thence via a walkway down to a metal canopied
gangway to the vessel. A parallel but secondary and uncovered gangway gives
access to the vessel for the purposes of transport of stores etc. There is an
open storage area available to the Club on the walkway, between the Embankment
and the river, to the north of the service gangway.
6
The vessel and its moorings are owned by the club and the river bed,
over which the vessel is moored and into which its anchors and dolphins are
inserted, is owned by the Port of London Authority. The river wall of the
Victoria Embankment, to which the horizontal anchorages and gangways are fixed
were, at the date of the proposal, owned by the Greater London Council but are
now owned by the London Residuary Body pending transfer to the Westminster City
Council.
7
On August 19 1978 the Port of London Authority granted to the club a
licence (in substitution for an earlier licence of the same kind) permitting
the club to place or retain the vessel with its piles, gangways and cables in
its location off the Victoria Embankment. The licence was accompanied by a
drawing of the vessel and its moorings, which drawing shows inter alia the
dolphins embedded in the soil of the river bed. In the licence the
consideration for it was stated to be the annual sum of £4,290 subject to
review after December 1 1979. The licence was expressly revocable by the Port
Authority on 14 days’ notice (subject to appeal to the Board of Trade). One of
the obligations imposed on the club by the licence was to remove the works from
the River Thames and to reinstate the river bed to the Port Authority’s
reasonable satisfaction before the expiration of any notice of revocation of
the licence given by the Port Authority.
8
The club’s rights of attachment to the river wall at Victoria Embankment
for the purpose of access and storage were granted by the Greater London
Council on March 1 1971 in an agreement between the Council and the club under
seal of that date. Under the terms of the agreement the club was liable to pay
to the Council an annual fee as follows:
(a) From January 1 1971 to December 31 1972:
£200;
(b) From January 1 1973 to December 31 1975:
£300; thereafter during the continuance of the licence: £400, subject to review
in the manner stated in the agreement.
9
The club at all material times has had the benefit of a justices’
restaurant licence for the sale of intoxicating liquor in the vessel’s
restaurant.
The reasons given by the Lands Tribunal
for dismissing the appeal on this point were as follows:
In my judgment, however generously the
proposal is construed it relates to a chattel and not to land. It is difficult
to understand how the wording of the proposal can be said to be sufficient to
connect the vessel with occupation of both the river bed and the river wall.
However, if it could be said that the proposal purported to rate a chattel
together with any land, then it is invalid because it includes the vessel
which, in the light of my decision, is not rateable. The hereditament to which
a proposal refers must consist solely of rateable subjects: see the definition
of ‘hereditament’ in section 115(1) of the General Rate Act 1967. For these
reasons, the Central London Valuation Court in its careful reasons came to the
right conclusion and the appeal is dismissed. I agree with Mr Hunter that the
correct rateable hereditament consists of the mooring on the river wall
passageway and storage area but that the vessel is not part of that
hereditament though it may be taken into account in so far as its presence
enhances the value of the mooring. No proposal to that effect is before me and no
valuation on that basis has been provided; in such a valuation no doubt the
consideration paid to the GLC would have some relevance.
The only valuation before the Lands
Tribunal was a valuation by Mr Woodbury dated March 8 1982. That valuation
clearly relates to the vessel. The gross value of the upper deck is given as
£2,870; the main deck, including the restaurant and bar, as £5,975, and the
lower deck as £1,628, the overall total being £10,473. The value given to the
land, gangway, dolphins, moorings etc is said to be ‘reflected’. So it is
obvious, for what it is worth, that this experienced valuation officer was
valuing the vessel as the hereditament or at least as the main element in a
composite hereditament.
There was an alternative proposal in
which the hereditament was described as comprising the lateral mooring rights
and the facilities on shore as enhanced in value by the nearby presence of the
ship. But that alternative proposal was not put forward before the Lands
Tribunal and it is not before us. On the face of it, the valuation on the
alternative proposal would be related to the licence fee payable to the GLC.
This was initially £200, rising to £400 and subject thereafter to review. One
would expect the value of the mooring enhanced by the presence of the vessel to
be much less than the value of the vessel as a vessel. So the objection to the
validity of the proposal on the ground that it does not indicate the correct
hereditament is not, as Mr Hunter points out, a mere quibble.
What, then, are the principles which
govern the validity of this proposal?
They are summarised by Nicholls LJ in a recent case in the Court of
Appeal, R v Northamptonshire Local Valuation Court, ex parte Anglian
Water Authority [1990] RA 93*. The adequacy of identification for a subject
hereditament falls to be determined according to ordinary principles of
construction and how the proposal would reasonably be understood by those upon
whom it was served. Common sense should be applied plentifully in deciding
whether the hereditament was adequately identified, but always bearing in mind
the fact that a proposal for alteration of the valuation list is a public
document available for inspection under section 108 of the General Rate Act
1967 and is intended to be adequately descriptive of the property affected.
*Editor’s note: Also reported at [1991] 1
EGLR 171.
Applying those principles in the present
case, I find myself in complete agreement with the views expressed by the
Valuation Court and the Lands Tribunal.
Mr Ground referred us to a number of
cases. I found them helpful on what I have called the underlying issue. But I
do not find them
construction of the particular proposal; neither more nor less.
Mr Ground accepts that to bring himself
within section 16 of the 1967 Act he must show that the respondents were
occupying land of some sort. He accepted that the vessel, as such, is a chattel
and not land. But he pointed out that ‘premises’ is a very wide word and is apt
to include that part of the Victoria Embankment to which the vessel was
attached laterally, including the canopied gangway and the entrance to the
gangway situated on the embankment. The ordinary reader, according to Mr
Ground, would at once realise that the Victoria Embankment was the rateable
hereditament, together with the vessel; alternatively, that the vessel served
to enhance the value of that part of the embankment.
I regret that I cannot accept that
argument. I agree that ‘premises’ is a word capable of a very wide meaning. But
the question is what it would mean to the ordinary reader in this context. The
primary description of the hereditament is ‘restaurant’, and restaurant can mean
only the vessel ‘Hispaniola’, as Mr Ground accepts. It is true that the address
is given as Victoria Embankment. But that would not lead the ordinary reader to
suppose that the Victoria Embankment was itself the hereditament.
In the Northamptonshire case, the
Valuation Officer identified as the rateable hereditament the wrong sewage
works, which no longer existed. It was held by this court that that proposal
was thereby rendered invalid. By the same token, the Valuation Officer has here
identified the ‘Hispaniola’ as the rateable hereditament, which, being a
chattel, cannot constitute an independent rateable hereditament without the
occupation of land. I do not think that as a matter of construction and using
such plentiful common sense as I can command, the proposal is saved by the
reference to ‘premises’ as part of the description of the hereditament.
Accordingly, the proposal is, on that simple ground, invalid.
But I go on to consider how the proposal
might appear to the more educated reader, that is to say the reader educated in
the intricacies of rating law. A chattel is not, as I have said, rateable as
such. But it may nevertheless become rateable if it occupies land or is enjoyed
with land, as were the moorings in Cory v Bristow (1877) 2 App
Cas 262, the builders’ huts in London County Council v Wilkins (VO)
[1957] AC 362, the coal tip in Ryan Industrial Fuels Ltd v Morgan
(VO) [1965] 1 WLR 1347 and the caravan in Field Place Caravan Park Ltd
v Harding [1966] 2 QB 484.
Assuming that the ‘Hispaniola’ occupies
land in this sense, what land does it occupy?
Mr Hunter submits that it occupies the river bed, that is to say, the
land or, more accurately, the land covered by water, which lies beneath it. Mr
Ground concedes that the ‘Hispaniola’ occupies the river bed. But he submits
that it ‘occupies’ the embankment as well. If he were right about that, it
would help him to show that the word ‘premises’ to the educated reader meant
that part of the embankment to which the ‘Hispaniola’ was attached.
I confess that, like the Lands Tribunal,
I find some difficulty in the concept of lateral occupation by a chattel, if
indeed occupation by a chattel is the right test. But for reasons which will
appear, I do not find it necessary to resolve that difficulty.
Mr Ground pointed out, quite correctly,
that a mooring on a river bank may be a rateable hereditament. Thus in Peak v
Stacey (1965) 11 RRC 251*, there was a 65ft motor yacht which had been moored
to the bank of Christchurch Harbour for many years. The hereditament was
described as ‘land for mooring a vessel called ‘Fair Lady II’ opposite
Christchurch Quay’. That was a perfectly accurate description of the
hereditament in that case. But the decision does not help us on the question
whether the yacht could be said to have ‘occupied’ the bank.
*Editor’s note: Also reported (1965) 195
EG 775.
Such authority as there is seems to
suggest that the ‘Hispaniola’ does not occupy the Victoria Embankment in any
relevant sense, though I accept, of course, that it was attached to the
embankment fore and aft by chains and that it was permanently connected to all
the main services. The nearest authority is Mersey Master Mariners’ Club
v West Derby Assessment Committee (1951) 44 R & IT 358. In that case
the description of the hereditament was ‘Quay and Moorings (Landfall Social
Club)’. In that case, as here, there was a gangway leading to the Landfall from
the quay. It was argued that ‘quay and moorings’ was not an apt description of
the hereditament sought to be rated. It was held that the land covered by water
on which the Landfall floated was itself the hereditament and that ‘moorings’
was a sufficiently accurate description of that land. I agree with Mr Hunter
that the present case is, in a sense, a fortiori, since here there is no
reference in the description of the hereditament to the quay or the mooring or
indeed to the Victoria Embankment at all: that was only the address.
Similarly, in Thomas (VO) v Witney
Aquatic Co Ltd [1972] RA 493*, the hereditament was described as ‘lake,
club house and premises’ with a rateable value of £250. The club house was
floating on the surface of the lake. It was argued, first, that ‘lake’ was not
an adequate description of the land beneath the water and, second, that the
ratepayers were not in rateable occupation of the club house, as it was a
chattel. Both arguments were rejected. It was held that the club house was
enjoyed with the lake and so with the land beneath the lake and was therefore
part of the rateable hereditament so described.
*Editor’s note: Also reported at (1973)
225 EG 101 and 226 EG 1222.
So the educated reader would, prima
facie, at any rate, take ‘the premises’ as a reference to the land
comprising the river bed and not the embankment. If that is so, then Mr Ground
is in difficulty, for by section 178(1) of the Port of London Act of 1968 the
river bed is not rateable. Section 178(1) provides:
Land . . . vested in . . . the Port
Authority and which [is] situated in, under, over or beside the part of the
Thames above London Bridge . . . shall not be liable to be rated and shall not
be included in any valuation list or in any rate whatever.
Mr Ground argued that this land was not
vested in the Port Authority because it was subject to the licence granted to
the respondents in 1978, at an annual fee of £4,290. He relied on the case of Dymock
v Showell’s Brewery Co Ltd (1898) 79 LT 329. In that case, the tenant of
a public house granted a subtenancy. It was held that he was thereby in breach
of a covenant not to allow the premises to become vested in a third party. Mr
Ground argues, by analogy, that the part of the river bed lying beneath the
‘Hispaniola’ was vested in the respondents by virtue of the licence, and
therefore no longer vested in the port authority for the purposes of section
178.
But there is a much closer analogy. In Whenman
v Clark [1916] 1 KB 94 the question was whether the tenants were in
rateable occupation of the Wilderness, a house owned by the conservators on the
river at Hampton Wick. It was held that the house was exempt. The language of
the relevant section was not the same then as it is now, but I can detect no
relevant difference. Mr Ground contends that the only question argued in the Whenman
case was whether it could be said that the house and grounds were being used
for any purpose in connection with the navigation or conservation of the river.
Mr Ryde, who appeared in that case for the rating authority, did not argue that
the land was not vested in the conservators, because he could not, according to
Mr Ground, go behind the findings in the case. That is why the point was not
taken.
Mr Hunter does not accept that the rating
authority was precluded by any finding in the case. If he is right about that,
then the fact that the point was not argued by counsel so expert in this field
as Mr Ryde, would certainly make one hesitate. But even if he is wrong, I would
hold that ‘vested’ in the context of section 178 bears its ordinary meaning and
refers to the freehold. The port authority was never divested of the freehold
of the land lying beneath the ‘Hispaniola’ in the present case. It never even
granted a lease of that land. It granted no more than a licence. The context in
Dymock v Showell’s Brewery Co Ltd, relating as it did to the
tenancy of a public house, was entirely different. I do not find that case of
any assistance in the construction of section 178.
One of the grounds of appeal in this case
is that Whenman v Clark was wrongly decided. But that is not open
to us, since it is a decision of the Court of Appeal. In any event, Parliament
has had two opportunities since 1916 to change the law as laid down in that
case. It has not taken advantage of those opportunities. It is clear to me that
land may be vested in the PLA, even though it is not occupied by the PLA. I
conclude that the river bed beneath the ‘Hispaniola’ was not liable to be
rated.
What, then, is the consequence? If the ‘Hispaniola’ is to be treated as
occupying the river bed, and not the embankment, then it is no more capable of
being treated as a rateable hereditament than the river bed itself. That
provides another short answer to the case.
But even if Mr Ground is right that the
‘Hispaniola’ can be treated as occupying the embankment as well as the river
bed, or at any rate as being enjoyed along with the embankment — although I
notice there is no finding of fact to that effect — the proposal would still,
in my opinion, be invalid. The fact that the description includes
includes land which was exempt.
Take the analogous case of land which is
unoccupied and therefore outside section 16 of the 1967 Act. In Overseers of
the Poor of Manchester v Headlam (1888) 21 QBD 96, Wills J said at p
98:
If one entire assessment [is to] be made
in terms upon property which he does occupy, and upon other property which he
does not occupy, so that upon the true state of facts being ascertained it is
impossible to satisfy the description in the rate-book without including
property which he does not occupy, the rate will be bad and ought not to be
enforced.
That principle was restated in the same
words by Robert Goff J, giving the decision of the Divisional Court comprising
Lord Widgery CJ, O’Connor J and himself, in the case of Camden London
Borough Council v Herwald, expressly approved by the Court of Appeal
at [1978] QB 626* at p 641. If land which is partly occupied and partly
unoccupied cannot comprise a single rateable hereditament, so also with land
which is partly rateable and partly exempt. The law has now been changed by
virtue of section 42(1)(c) of and Schedule 5 to the 1988 Act, but we need not
go into that now. We must go by the law as it was in 1982.
*Editor’s note: Also reported at (1978)
246 EG 823, [1978] 1 EGLR 107.
In so far as the first ground of appeal
in this case asserts that it is sufficient to save the proposal that the
description embraces the embankment wall as well as the vessel, I would
respectfully disagree. If the bank is part of the hereditament within the word
‘premises’, so also is the river bed. It is all part of one unit of occupation.
But a unit of occupation, at any rate in 1982, could not as a rateable
hereditament be partly good and partly bad. So I would hold that whether one
looks at the description through the eyes of common sense or whether one endows
the reader with a knowledge of rating law, the proposal as it stands is
invalid.
There was some discussion whether the
proposal could be amended retrospectively to 1982. But that point was not
proceeded with. Nor was there any suggestion throughout the argument that the
vessel could be regarded as plant and therefore subject to the special
regulations dealing with the rateability of plant.
Other questions of great interest are
raised in the decision of the Lands Tribunal and the Valuation Court, but they
will have to await another occasion. In the meantime I should set out my answer
to the questions of law for our decision. The questions [in the case stated by
the Lands Tribunal] are:
(1) Whether
I was correct in law in holding that notwithstanding the licence granted to the
First Respondent by the Port of London Authority, the river bed beneath the
vessel Hispaniola was vested in the Port of London Authority so as to be exempt
from liability to be read within the meaning of section 178 of the Port of
London Act 1968?
(2) Whether
I was correct in law in holding that the dolphins owned by the First Respondent
and securing the vessel and the vessel itself were not together capable of
constituting ‘lands’ for the purposes of section 16(a) of the General Rate Act?
(3) Whether
I was correct in law in deciding that it is not possible for the vessel
Hispaniola to occupy part of the river bed and part of the river wall as well?
(4) Whether
I was correct in law in deciding that however generously the proposal is
construed, it relates to a chattel and not to land?
(5) Whether
upon its true construction the proposal included those parts of the river bed
beneath the vessel and the gangway leading to it and in which the dolphins and
anchors securing the vessel were placed.
I would answer questions (1), (2), (4)
and (5) in the affirmative. I would leave open the answer to question (3).
Whatever answer may be required to that question would not, in my opinion, make
any difference for the purpose of answering questions (4) and (5).
Nothing that I have said should be taken
as casting any doubt on the alternative proposal, which is not before us, but
which has been put forward, no doubt ex abundanti cautela. Nor need I
mention the respondents’ notice, for which, however, we would give leave were
this case to go higher. The extent to which the part of the embankment where
the ‘Hispaniola’ is moored may be said to have been enhanced in value by the
mooring is a question of fact for the Valuation Court and the Lands Tribunal
and not for us.
I can see no error of law in the decision
of the Lands Tribunal. So I would dismiss the appeal.
Agreeing, MANN LJ said: A proposal
for the alteration of a valuation list must contain an adequate definition of
the hereditament which is the subject of the proposal. At the date of this
proposal, that is to say March 8 1982, the concept of hereditament was to be
directly derived from the General Rate Act 1967. Section 115(1) of that Act
provided:
‘Hereditament’ means property which is or
may become liable to a rate, being a unit of such property which is, or would
fall to be, shown as a separate item in the valuation list.
That interpretation of the word takes me
to section 16, which deals with the liability to be rated in respect of the
occupation of property. It provides, so far as is material:
. . . every occupier of property of any
of the following descriptions, namely —
(a)
lands;
. . . shall be liable to be assessed to
rates in respect of the hereditament or hereditaments comprising that property.
Subject to immaterial exceptions,
chattels of themselves are not rateable. I emphasise ‘of themselves’, because a
chattel, which is more than transiently upon land and which is enjoyed with the
land, may be the subject of rating. The cases were rehearsed by Lord Denning MR
in Field Place Caravan Park Ltd v Harding [1966] 2 QB 484. He
said at p 497G:
The correct proposition today is that,
although a chattel is not a rateable hereditament by itself, nevertheless it
may become rateable together with land, if it is placed on a piece of land and
enjoyed with it in such circumstances and with such a degree of permanence that
the chattel with the land can together be regarded as one unit of occupation.
Where such a situation obtains, then it
may be said that the ratepayer is rated in respect of the thing or things
because it is by means of the thing or things that he occupies the land. Such a
formulation was preferred by Salmon LJ in Ryan Industrial Fuels Ltd v Morgan
(VO) [1965] 1 WLR 1347 at p 1358G, where he said:
In view of the fact that the appellants
occupied the land by means of their occupation of the tip, and no question is
raised as to the amount of the assessment, it may not be very material to consider
whether the rateable hereditament is the tip or the land. In my judgment,
however, the better view is that the appellants are rateable in respect of
their occupation of the tip, and not merely in respect of their occupation of
the land upon which it stands.
Then he quotes from another case London
County Council v Wilkins (VO) [1956] 3 All ER 38 at p 47:
‘Where the owners of pipes, cables,
posts, etc, are rated as occupiers they are rated in respect of those things
themselves, by means of which they occupy the land, not merely in respect of
the land that is occupied: just as in Cory v Bristow it was the
moorings themselves that were treated as the rateable hereditament.
That analysis does not, of course,
involve any dispensation with the requirement that there be ‘land’. That
requirement by statute remains fundamental.
I turn to this proposal. Guidance upon
the construction of a proposal was given by Nicholls LJ in R v Northamptonshire
Local Valuation Court, ex parte Anglian Water Authority [1990] RA 93 at p
101. To that passage Lloyd LJ has already referred. I approach the proposal of
March 8 1982 with the guidance in mind. The proposal describes the hereditament
as ‘Restaurant and premises’. The restaurant is the ‘Hispaniola’. So we have,
by simple translation, vessel and premises. The vessel is the primary object.
Mr Ground readily accepted, as, of course, he had to, that the vessel is not
rateable of itself. He said that the hereditament here is the embankment and
that which is attached to it, albeit horizontally. At first I had understood
him to confine the attachments to the mooring equipment and not to include the
vessel. I must have misunderstood him, for he corrected me in his reply, when
he said that the attachments horizontally included the vessel.
If I ask whether, in accordance with the
guidance given by Nicholls LJ, the language of the proposal was adequately
descriptive of the hereditament so propounded by Mr Ground, I am compelled,
like Lloyd LJ, to return the answer ‘No, it was not’. That alone would suffice
to dispose of this appeal. There was, however, much discussion before us as to
what was the position in rating law which was achieved by the facts as found by
the tribunal. Whatever that position may be, its achievement is undoubtedly complicated
by the status of the bed of the river.
The river bed
is owned by the Port of London Authority. Section 178 of the Port of London Act
1968 exempts from rateability land vested in the authority. That exemption
reflects exemptions granted in earlier enactments. Those enactments were the
Port of London (Consolidation) Act 1920, section 311, and section 289 of the
Thames Conservancy Act 1894. The language of the successive sections is
grammatically somewhat different, but I can detect no sensible
of the Act of 1894, fell for consideration in Whenman v Clark
[1916] 1 KB 94. The decision in that case predicated that a house remained
vested in the authority’s predecessors notwithstanding that it had been leased.
A fortiori, it was here said, when the land is licensed. It was
suggested to us that that which is necessarily predicated in the decision was
either not argued or was not open to argument. I am not convinced that the point
was not open to argument but, be that as it may, the decision has stood for 76
years. The legislation has twice been before Parliament in that period. The
legislation has not been altered in its effective language. I think that it is
now far too late to take any point upon Whenman v Clark. I think
it must now be accepted that land remains vested in the Port of London
Authority for the purposes of the Act notwithstanding that the possession or
enjoyment of it for the time being is in other hands.
As that is so, if it be supposed that the
bed of the river is occupied by means of the ‘Hispaniola’ being held above it
by the embedded dolphins, then that occupation would not be a rateable
occupation of the bed because of section 178 of the 1968 Act. The correctness
of the supposition does not fall for decision. However, on the facts as found,
I am of the view that it would be a correct identification of the only land
which could be said to be enjoyed through the vessel. In common with Lloyd LJ
and with Mr Wellings, I doubt whether one can occupy land by means of a chattel
which is not on, under or above that land.
I have held that the proposal does not
relate to the embankment. It may be that there could in the embankment be found
a hereditament. It might perhaps be the embankment as a mooring place. It would
be a more sophisticated version of that which fell to be considered in Peak
v Stacey (1965) 11 RRC 251. How such a hereditament, if it exists, would
be valued was not before this court. It is not a task which has fallen to
anyone to consider in this case. Someone who did embark upon the task might, or
might not, find a convenient starting point in the income derived by the London
Residuary Body from the fees under the agreement of March 1 1971. This is a
question which may have to be considered on some future occasion, and I am not
to be taken as expressing any definitive view on it.
I agree with the way in which Lloyd LJ
proposes to answer the questions asked in the case stated, and I also would
dismiss this appeal.
SIR DAVID CROOM-JOHNSON agreed and did not add
anything.
The appeal was dismissed with costs; an
application for leave to appeal to the House of Lords was refused.