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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Liverpool corporation v. chorley union [1913] UKHL 661 (03 February 1913) URL: http://www.bailii.org/uk/cases/UKHL/1913/50SLR0661.html Cite as: [1913] UKHL 661, 50 ScotLR 661 |
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Page: 661↓
(On Appeal from the Court of Appeal in England.)
(Before the
Subject_Assessment — Exemption — Occupation.
The appellants, who owned waterworks, contended they were not in beneficial occupation of a moor owned by them and forming part of their catchment area but not otherwise used except by their shooting tenant. Held that either of these uses was sufficient to constitute the appellants beneficial occupiers and therefore liable to assessment.
This was an appeal from a judgment of the Court of Appeal ( Vaughan williams, Buckley, and Kennedy, L.JJ.) reported 1912, 1 K.B. 270, affirming a judgment of the Divisional Court ( lord alverstone, C.J., Hamilton and Avory, JJ.) reported 1911, 1 K.B. 1057, which had reversed a decision of the Court of Quarter Sessions for the county of Lancaster upon a case stated.
The facts appear from their Lordships’ judgment, which was delivered as follows:—
Page: 662↓
The appellants are the owners of the Rivington waterworks, in and by which they carry on the commercial business of vendors of water. The commodity which they sell is collected for them in a vast gathering ground 10,000 acres in extent. Owing to the configuration of this tract, the rain water which falls upon it flows towards their reservoirs in natural channels.
The appellants availed themselves for several years of this source of supply, though the gathering ground did not belong to them; but in order to have more absolute control over this catchment area, and thereby enable them to protect from pollution the more effectually the water gathered in it, thus rendering the water better, purer, and presumably more saleable, they purchased in the year 1898, at very considerable cost, the whole tract of 10,000 acres. Part of this tract they let to tenants, who are rated in respect of the occupation of their holdings. The appellants are themselves rated in respect of their reservoirs and works, and as they have devoted the planted area to two uses, first, to the use of collecting water for them, and secondly, to the use of producing timber for them, they have also devoted the moorland to two uses, first, the gathering of water, and secondly, the use of harbouring, feeding, and rearing game. The moor is a grouse moor. They have, by lease bearing date the 16th March 1906, leased the sporting rights over it and the plantations together with some other lands to a tenant at a rent of £300 per annum. Later on I shall deal with some of the terms of this lease and the nature of the rights which it confers. The appellants, however, insist that, notwithstanding the second use to which they thus devote the moorland, lucrative though it be, they are not liable to be rated as being in beneficial occupation of it.
The changes which the appellants made in their treatment of and mode of dealing with this moor and their other lands after they had purchased them are described in pars. 5 and 6 of the Case stated, which ran as follows—(5) “The said land when bought by the appellants consisted partly of agricultural land with farmhouses and buildings on it, and more largely of moorland. In order to reduce the population and the cattle on the said land, and so diminish the risk of the pollution of the water flowing therefrom, the appellants demolished, or caused to be left unoccupied, certain farmhouses and buildings thereon, and abolished certain rights of pasturage and turf cutting which had previously been enjoyed thereon, and limited the user thereof to purposes of sporting and afforestation in manner hereafter appearing.” (6) “They had planted 297
In order to prove that an owner in possession of such an extensive tract as this has entered into actual occupation of it, one is not obliged to prove the doing of some physical act on every portion of it. One must have regard to the kind of occupation of which the tract is reasonably susceptible. Acts done on one portion of it may furnish strong evidence of his having entered into and being in actual occupation of other portions of it or of the whole tract. The fencing of and planting of nearly 300 acres of this tract, and the demolition of farmhouses and other buildings erected upon other portions of it, go strongly to prove in this case that the appellants had entered into actual occupation of the whole tract. But as regards the moorland there is much more.
The gamekeeper of the lessee, acting with the authority of the appellants, regularly warns trespassers off the moor. Since the purchase the trespassers have been more rigorously excluded than theretofore. Before the passing of the Rating Act of 1874 the right of sporting over land granted by the owners of the lands was not rateable under the statute of Elizabeth, not being a “hereditament”— Reg. v. Battle Union, L.R., 2 Q.B. 8. Now it is rateable though granted in gross and severed from the occupation of the land— Kenwick v. Overseers of Guilsfield, 5 C.P. Div. 41. It was stated that the lessee is rated under this statute in respect of the sporting right granted to him. He has no estate or interest in this moorland itself, but this lease contains covenants binding him to burn each year a portion of the old ling or heather growing on the moor, in the manner therein described, to the satisfaction of the appellants, and also binding him to keep and maintain shooting butts and stands and walls (presumably on the moor) in good and substantial repair to the satisfaction of the agent of the corporation. The appellants have thus appointed a person to dispose yearly of some of the heathery produce of the moor, and to repair and maintain certain physical structures upon it. If the lessee keeps his covenant and does those things, he does them, not by virtue of any estate or proprietary interest which he has in the land or right over it, but as the agent of the appellants. The physical acts thus required
Page: 663↓
As an illustration of how slight a user of land by its proprietor in possession will be held sufficient to render him liable to be rated as the beneficial occupant of it (the land), I may refer to the decision in the case of Rex v. Mersey and Irwell Navigation Company (9 B. & C. 95), apparently approved of in this House in the case of Assessment Committee of Doncaster Union v. Manchester, Sheffield, and Lincolnshire Railway Company ( 71 L.T. Rep. 585)—(see the judgment of Lord Davey in Assessment Committee of Holywell Union v.Halkyn Mines Company, 1895 A.C. 117, and the footnote on the following page). In the first-mentioned case the undertakers, the respondents, were empowered by statute to deepen and straighten the bed of portions of the rivers Irwell and Mersey so as to make them navigable. The exclusive right (a most valuable one) of navigating the portions of these rivers where those works were effected was conferred upon them, subject only to this, that the riparian owners of land abutting on the streams had also the right of navigating the rivers, but only with pleasure boats. The respondents had acquired for the purpose of this navigation certain towing paths and locks in respect of which they were admittedly rateable. The point at issue was whether they were also rateable as occupiers of the subaqueous soil, the bed of the river. They were held not to be so, because they were not the owners of the bed and soil, but only entitled to an easement over it. It was quite clear, however, from the judgments of Bayley and Parke, JJ., that had they been owners of the bed and soil they would have been held to be rateable as the occupiers of it though the only way in which they used the soil was by navigating the waters lying above it.
In the case of Jones v.Mersey Docks and Harbour Board ( 3 Macph. (H.L.) 102, note, 11 H.L.C. 443), Blackburn, J., in delivering the opinion of the Judges, said—“It is clear that there can be no valid rate unless the occupation be of value, and if the words ‘beneficial occupation’ are to be understood as merely signifying that the occupation is of value, which is the sense in which the phrase is used in many cases cited at the Bar, it is clear that a beneficial occupation is essential to the foundation of the rate.” Lord Cairns, L.C.'s, judgment in Greig v. University of Edinburgh ( L.R., 1 Sc. App. 348, 6 Macph. (H.L.) 97) is to the same effect; and Lord Herschell, L.C., in commenting in London County Council v. Churchwardens of Erith (1893 A.C. 562) on this passage from Blackburn, J.'s, judgment, said—“The learned Judge, in my opinion, did not, and could not, have meant that it is essential to rateability that a particular occupier of the land can make a pecuniary profit by the use to which he is putting it. It is, I think, rateable whenever its occupation is of value.” That principle has been pointed out and acted upon in many subsequent cases, and yet in the argument of the case before your Lordships it has not been steadily kept in view. Indeed, with all respect to the learned Judges who commented upon the judgment of your Lordships' House in Winstanley v. Overseers of North Manchester (1910, A.C. 7), I am not quite sure that the distinction between the kind of occupation of land which, however well established, is not rateable, and the kind of occupation which is rateable, has not, by one of them at least, been rather lost sight of. For instance, Lord Alverstone, C.J., is reported to have expressed himself thus in the present case—“On behalf of the respondent it was contended that the proposition laid down by Lord Atkinson in giving judgment in Winstanley v. Overseers of North Manchester that owners in possession are prima facie occupiers, is to be understood in the literal and bald way in which it is there stated, and that it governs the present case, and therefore that the owner of land in possession of the land as owner, if he does not allow anybody else to occupy it, is in rateable possession of it.” But this House never affirmed or purported or intended to affirm any such proposition as that the owner of land, not houses, is to be held to be prima facie in rateable occupation of it in such circumstances.
The passage cited from the report in Winstanley's case, based as it was upon the judgments of Blackburn, J., and Lord Herschell, L.C., had reference solely to the first of the three questions into which
Page: 664↓
The next authority cited on behalf of the appellants was Smith v. New Forest Union, reported very briefly in the Court of Appeal (61 L.T.R. 870) and in the Divisional Court (60 L.T.R. 927). The facts which appear from these reports were as follows:—Smith, the person whom it was sought to rate, had purchased a plot of building ground with the intention of building upon it. It was unenclosed when he bought it. He never himself enclosed it, cultivated it, or built upon it, let it, or used it in any way. The cattle of a neighbour, without his knowledge or permission, frequently strayed over it and ate any grass which they found upon it. He caused a bill to be affixed to a tree growing upon the plot stating that it was to be let, but he never succeeded in letting it. The fixing of this notice was the only physical act which he did upon it, and the question asked of the Divisional Court by the justices in the case stated was this—Was Smith under the circumstances an occupier of this plot of ground within the meaning of 43 Eliz. c. 2? That question was answered in the negative. It was obvious that he, if in occupation of the plot at all, was not in such beneficial occupation of it as would render him rateable, and it is somewhat difficult to discover whether or not this was the precise ground of decision. Lopes, L.J., says—“To constitute occupation under the statute of Elizabeth there must be an enjoyment of the property capable of being beneficial. There is no evidence of any such here.” Lord Esher, M.R., said—“ He was never in such occupation as to be rateable under the statute of Elizabeth.” I do not think that the decision is in any way applicable to the present case or in conflict with the law as laid down by Lord Herschell.
But the authorities mainly relied upon by the appellants were those which deal with the non-rateability of vacant houses. I find great difficulty in reconciling these one with the other, from the statement of the law laid down by Lush, J., in Reg. v. St Pancras Assessment Committee ( 2 QBD 581) down to the decision in Rex v. Melladew (1907, 1 K.B. 192) and Borwick & Sons v. Mayor of Southwark (1909, 1 K.B. 78), and still greater difficulty in discovering any intelligible principle upon which the decisions are founded, or any principle applicable equally to vacant houses and to property like that which it is sought to rate in this case. Blackburn, J., in Hunter v. Overseers of Salford (6 B. & S. 591) says that the exemption of vacant houses from rateability is a good rough rule which may work well in practice, but that he could never understand the reason why a vacant house should not be rated if there is no furniture in it. During the argument Lord Halsbury suggested a possible construction of the statute of Elizabeth which would afford a quite intelligible reason for the practice which is followed. It was, as I understand it, this—The statute of Elizabeth enumerates “houses” as well as “lands”
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However that may be, I do not think that the cases dealing with the rateability of vacant houses are applicable to such a property as this moor, which through the operations of nature, unaided by man, produces each year products such as grass, heath, and bracken, useful and valuable to man, and in this case rears and harbours game upon it in addition, thus differing in almost every aspect from a vacant house, which produces nothing, and is used for no purpose whatever. Mr Balfour Browne urged that occupation includes possession plus use. He admitted, however, that if the appellants had built an embankment across the mouth of a valley on this moorland and flooded the valley, thereby turning it into a reservoir to supply their lower works, they would, properly, have been held to be in beneficial occupation of the lands upon which the water rested in the valley. I am quite unable to discover any principle upon which these lands could be distinguished on this point from those upon which the rainwater falls, and over which it runs on its way to its resting place.
The lands of each kind all help to this same end, and serve in different ways to effect the same ultimate purpose—namely, to feed the appellants' works with a supply of pure and unpolluted water for their commercial gain. Accepting, then, for the moment, Mr Balfour Browne's definition, I am clearly of opinion that each of the uses to which the appellants devote this moorland—the commercial use of collecting for them water which they in their business vend, as well also its use as a game preserve of the kind described, and certainly those two uses combined—are sufficient to turn the appellants' admitted possession of the moor into their beneficial occupation of it, which renders them rateable in respect of it. For all the foregoing reasons, I think that the order of the Court of Appeal was rightly made and should be affirmed, and this appeal be dismissed.
The Earl of Halsbury and Lord Shaw concurred.
Judgment appealed from affirmed and appeal dismissed with costs.
Counsel for the Appellants— Balfour Browne, K.C.—Macmorran, K.C.—Oulton.Agents— F. Venn & Company, for E. R. Pickmere, Town Clerk of Liverpool, Solicitors.
Counsel for the Respondents— Danck-werts, K.C.—Ryde, K.C.—Gordon Hewart, K.C. Agents— Crowders, Vizard, Oldham, & Company, for Stanton & Sons, Chorley, Solicitors.