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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Reeves (Listing Officer) v Northrop [2012] EWHC 415 (Admin) (06 March 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/415.html
Cite as: [2012] 1 WLR 2177, [2012] PTSR 1567, [2012] RA 117, [2012] ACD 57, [2012] EWHC 415 (Admin), [2012] WLR(D) 61
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| JOHN REEVES (LISTING OFFICER) |
Appellant |
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| - and - |
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| RANDY NORTHROP |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Stephen Knafler QC (instructed by Avon and Bristol Law Centre) for the Respondent
Hearing date: 22 February 2012
____________________
Crown Copyright ©
- The Respondent and his family live in a vessel known as The Cannis. They have done so since 2001 or thereabouts. The vessel was formerly used as a tugboat but at some stage it was fitted out to provide normal domestic accommodation. It has a galley/kitchen area, a lounge area, a music room, 2 bedrooms and a bathroom with normal domestic bathroom fittings.
- Between 11 December 2008 and October 2011 The Cannis was located at a riverside site at Chivenor Park, Barnstaple EX31 4AY. When the boat was first taken to that site there was no formal mooring laid out; it simply rested on the mud flat although it was secured at both front and back to the riverbed or riverbank.
- Some time after 11 December 2008 the boat broke free of this mooring. The Respondent returned the boat to a slightly different location and secured the boat with lines to stakes and a tyre. The Respondent also dug out a mud berth.
- The Respondent's occupation of The Cannis came to the attention of the Appellant following an article that was published in the North Devon Journal dated 25 February 2010. The article appeared under the headline "Boat is an ideal family home". In consequence the local billing authority (North Devon District Council) sent the details of the boat to the Valuation Office Agency. Thereafter, the boat was entered into the Council Tax Valuation List with effect from 11 December 2008.
- As was his right the Respondent appealed against the listing to the Valuation Tribunal for England. In a decision dated 17 February 2011 the Tribunal determined that the entry in the Council Tax Valuation List relating to The Cannis should be deleted from the list with effect from 11 December 2008.
- An appeal against a decision of the Valuation Tribunal lies to this court on a question of law - see Regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009. Regulation 43(4) provides that this court may confirm, vary, set aside, revoke or remit the decision or order and it may make any order that the Valuation Tribunal could have made.
- Section 22 of the Local Government Finance Act 1992 requires the Listing Officer for each billing authority to compile and maintain a valuation list for the authority. Section 23(1) provides that a valuation list must show, for each day for which it is in force, each dwelling which is situated in the billing authority's area. The word dwelling is defined by section 3 of the 1992 Act. A dwelling is any property which
- Counsel for the Appellant and Leading Counsel for the Respondent agree that if The Cannis is properly to be regarded as being a hereditament (or part of one) within section 115(1) of the General Rate Act 1967 it was properly included as a dwelling on the valuation list.
- Section 115 of the General Rate Act 1967 defines hereditament to mean "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". As is obvious, this definition, by itself, cannot provide the answer to whether or not The Cannis was properly included as a dwelling in the Valuation List. Rather, the answer must be sought from the decided cases to which I was referred.
- The starting point is the decision of the Court of Appeal in John Laing & Son Ltd v Assessment Committee for Kingswood Assessment Area and Others [1949] 1 KB 344. In that case building contractors engaged by the Air Ministry to execute works at an aerodrome erected on the site, for the purpose of carrying out the contract, offices, garages, canteen for workmen and other structures. Although the site was handed over to the contractors, the conditions of the contract between the contractors and the Air Ministry specified that the execution of the work was subject to the control and direction of the Ministry's Superintending Officer. In due course the local rating authority proposed to amend its valuation list by adding the contractors' officers and other structures as a rateable hereditament. A special case was stated for the opinion of the Divisional Court on the question whether the contractors were in rateable occupation of that hereditament. The Divisional Court answered the question in the affirmative. The Court of Appeal dismissed the contractors' appeal against that decision.
- The leading judgment in the Court of Appeal was delivered by Tucker LJ. During the course of that judgment he identified the primary question for determination by their Lordships as being whether the contractors were in actual and exclusive occupation of the particular hereditament. However he also recorded, as accurate, a submission made to him by Counsel as to the necessary ingredients to be proved for rateable occupation to be established.
- As I have said the primary issue before their Lordships was whether the contractors were in actual exclusive occupation of the particular hereditament. It is worthy of note, however, that by the time of the hearing before the Divisional Court the exclusive occupation which the court found existed had subsisted for about 2 years. In his short concurring judgment Jenkins J (as he then was) referred to the four ingredients of rateable occupation and commented:-
- The next important decision is London County Council v Wilkins [1957] AC 362. The relevant facts were these. The Appellant County Council entered into a contract with contractors to build a school on a site within its ownership. Shortly after taking possession of the site the contractors erected a number of huts within its confines. Each of the huts was used to facilitate the work of constructing the school. The huts remained on the site for 18 months and they were then dismantled. An issue arose as to whether or not the huts constituted a rateable hereditament. The Lands Tribunal concluded that they did; the Court of Appeal upheld that conclusion as did the House of Lords.
- It is not easy to distil the ratio of the decision reached in their Lordships' House. At a simplistic level it could be said that their Lordships decided no more than that the findings of fact made by the Tribunal justified the conclusion that the huts constituted a rateable hereditament. However, during the course of their speeches, four of their lordships commented upon various aspects of the test for rateability. It is worth quoting what they had to say.
- At pages 373 and 374 Viscount Kilmuir set out what he regarded as the appropriate legal test for rateability. The passage is in the following terms:-
- Laing was cited to their Lordships in London County Council. There is no suggestion in any of the speeches of their Lordships that they intended to lay down any different test for rateable occupation than that which was propounded in Laing although, as is obvious, they formulated the test or parts of the test in words of their own.
- In Field Place Caravan Park Ltd v Harding [1966] QB 484 the Court of Appeal applied the London County Council case. In that case a number of residential caravans with their respective pitches situated on caravan sites were entered as rateable hereditaments in the local valuation list. The Lands Tribunal confirmed the entries. On appeal to the Court of Appeal it was contended that a caravan was a chattel and that accordingly the caravan plus its pitch was not a rateable hereditament. The Court of Appeal rejected that argument. Lord Denning M.R. said:-
- In Rudd (Valuation Officer) v Cinderella Rockafellas Ltd [2003] 1WLR 2423 the ratepayer company acquired a former passenger ferry and converted it for use as an entertainment complex. The vessel was moored on a river with permission of the port authority and under a licence over the riverbed and foreshore granted by the Crown Estate Commissioners. It was fastened by ropes and chains to the adjoining quayside with access gained by means of steel gangways. The company also occupied an area of land comprising the river frontage where the vessel was moored and a car park under a lease granted by the local authority. Save for one occasion the vessel remained in its position, floating on the river, between 1989 and 1999.
- The local valuation officer entered the vessel in the rating lists for the years 1990 and 1995 as a non-domestic hereditament. The local Valuation Tribunal allowed the company's appeal against the entries and ordered their removal on the ground that the vessel itself was not rateable, only the adjoining land. The Lands Tribunal allowed the valuation officer's appeal and an appeal by the company to the Court of Appeal was dismissed.
- The head note of the court's decision is as follows:-
- During the course of his judgment Potter LJ (with whom Chadwick and Tuckey LJJ agreed) analysed the decisions in Laing, London County Council and Field Place Caravan Park Ltd. He then applied the principles to be found in those cases in the following passage of his judgment.
- Finally, I should mention a decision of the Lands Tribunal given by JH Emlyn Jones Esq FRICS in Thomas (Valuation Officer) v Whitney Aquatic Co Ltd [1972] RA 493. In that case the ratepayers had a legal right to use a lake for sporting activities and to maintain a floating clubhouse on the lake. The clubhouse was made fast in a particular location upon the lake but it was moved in winter months to an island in the centre of the lake. The Lands Tribunal held that the lake and clubhouse were rateable as part of the ratepayers hereditament. It did so on the basis that rateable occupation was to be determined by a consideration of the "four tests of rateability referred to by the solicitor for the valuation officer, which were first propounded by Counsel in the John Laing case, and subsequently adopted by the House of Lords in London County Council v Wilkins." During the course of the decision Mr Emlyn Jones considered the significance of the fact that the clubhouse was moved from the position in which it was used during the winter months. He said this:-
- At first blush the reader of this judgment may find it difficult to understand why it has been necessary to quote so extensively from the authorities. The reason is as follows. Ms Ward submits that a court or tribunal charged with the task of determining whether actual occupation of the structure in question was "not too transient" or "had a sufficient degree of permanency" must take account of one factor only namely the length of time over which the court or tribunal considers that the occupation has subsisted. According to Ms Ward, no other factor is relevant to the determination. Mr Knafler QC disagrees. He acknowledges in his skeleton argument that the duration of occupation is clearly an important factor to be taken into consideration but he submits that a court or tribunal is entitled to take into account any other fact or set of circumstances which is relevant to the issue of whether the occupation has been "not too transient" or "had a sufficient degree of permanency".
- Despite Ms Ward's able submissions, I am unable to discern in any of the authorities set out above clear and unequivocal support for her submission that duration of occupation is to be the sole determining factor when considering whether occupation is "not too transient". While many of the cases demonstrate that the duration of occupation will, by itself, be sufficient to satisfy the fourth condition of rateability that does not mean that it will necessarily be unlawful for a court or tribunal to take account of other factors when called upon to determine whether or not occupation has been "not too transient" or "sufficiently permanent".
- I am supported in this view by the decision of the Lands Tribunal in Thomas. Mr Emlyn Jones held, expressly, that although the duration of occupation was always an important factor in determining degrees of transience or sufficiency of permanence the character of the occupation could also have a bearing on these issues in an appropriate case. Mr Jones reached that conclusion after an exhaustive consideration of the main authorities and having considered the same passages in those authorities, in the main, which I have set out above.
- The issue of whether or not occupation is "not too transient" or "sufficiently permanent" essentially depends upon an exercise in evaluation and judgment. Instinctively it would be very surprising if the issue was to be determined strictly by reference to a period of time in every case regardless of any other relevant circumstance.
- I appreciate, of course, that there has developed a "rule of thumb" to the effect that occupation for more than one year is likely to lead to the conclusion that sufficiency of permanence has been established. In my judgment, however, that does not mean that duration is the only criterion by which permanency is to be judged. I regard the "rule of thumb" as nothing more than an acknowledgement that once a significant length of occupancy has been proved the likelihood is that sufficiency of permanence will also be proved.
- In my judgment the correct legal position is that duration of occupation will always be an important factor when determining whether occupation should be regarded as "not too transient" or "sufficiently permanent". No doubt, in practice, there will be cases in which the period of occupation will be such as to be, in effect, determinative of the issue of transience or permanency. However, I do not consider that other factors will be irrelevant, necessarily, in every case. In my judgment, it cannot be said that a court or tribunal will act unlawfully, inevitably, if it takes account of factors other than duration of occupation when resolving the issue of transience or permanency.
- I turn from this analysis of the appropriate test for rateability to the decision of the Valuation Tribunal in this case. I make this preliminary observation. It is common ground between the Appellant and Respondent before me that there was no material dispute of fact before the Valuation Tribunal. Accordingly, Mr Knafler QC submits that I should proceed on the basis that the Valuation Tribunal accepted the Respondent's evidence in all its respects and that the Tribunal's reasoning should be read against that context. It is convenient to set out the material parts of the Respondent's evidence in bullet form just as Mr Knafler does at paragraph 6 of his skeleton argument.
- It is clear from paragraph 16 of the decision that the Appellant and Respondent accepted that three of the four conditions for rateability were established. That means that it was common ground before the Tribunal that the Respondent had been in actual occupation of The Cannis and that The Cannis had occupied an area of the riverbed; that the Respondent's occupation of the boat was exclusively for his purposes and that the occupation had been of value and/or benefit to the Respondent.
- It was also common ground that for practical purposes The Cannis had remained in essentially the same position since 11 December 2008 except in the circumstances described at paragraph 29 above. That meant that it had been in its position on the river for more than a year by the time that it was first entered in the Council Tax Valuation List and it had been in the same position for approximately 2 years by the time of the hearing before the Tribunal. It seems to me to be clear in the light of the authorities that such a period of occupation was, at the very least, a very significant factor militating in favour of a finding that the occupation "had not been too transient" or was "sufficiently permanent".
- Paragraphs 16 to 19 of the decision read as follows:-
- Consistent with her approach to the correct legal test, Ms Ward submits that the Tribunal fell into error when taking account of factors other than duration of occupation when determining whether the occupation had not been too transient in its nature. For reasons which are explained above I cannot accept that submission, at least in the bald form in which it was put by Ms Ward. I do not consider that the Tribunal necessarily fall into legal error by taking account of factors other than duration of occupancy when determining whether the occupation had been not too transient.
- That does not mean, however, that this appeal is bound to fail. It was incumbent upon the Valuation Tribunal to apply the correct legal test. That means that the Tribunal was bound to consider the duration of the occupancy as an important factor when determining whether the occupancy was "not too transient" or sufficiently permanent".
- I have reached the clear conclusion that the Tribunal did not consider duration of occupancy as an important factor in its consideration. A fair reading of paragraph 17 leads to the conclusion, inescapably, that duration of occupancy was just one of the factors to be taken into account when determining whether the occupancy was not too transient or sufficiently permanent. It was not afforded proper significance i.e. it was not treated as an important factor in the assessment which had to be made. In proceeding as it did, in my judgment, the Tribunal fell into error.
- I appreciate, as Mr Knafler QC submits, that this court should be slow to conclude that a specialist Tribunal has failed to apply, correctly, a legal test which is well established. However, as it seems to me, the conclusion that the Tribunal did fall into error is readily apparent from the plain language used by the Tribunal in its decision.
- It also seems to me that the Tribunal was wrong to take account of "the overall circumstances of the mooring arrangements." Mr Knafler QC invites me to conclude that this phrase, as used in paragraph 19 of the decision, should be widely construed so as to include a number of aspects of the Respondent's evidence over and above those which related strictly to how his boat was secured. In my judgment, however, Ms Ward is right when she submits that the natural sense of the phrase is informed not by the whole of the evidence given by the Respondent but rather from paragraph 18 of the decision which focuses, exclusively, upon mooring arrangements in the narrow sense of the phrase. Read together, I am satisfied that paragraphs 18 and 19 show that the Tribunal was concerned with how the Respondent secured his boat.
- Finding, as I do, that the phrase "the overall circumstances of the mooring arrangements" relates to the way in which the Respondent secured his boat over the duration of his occupation it does not seem to me that this has any material bearing upon the issue of transience or permanence. As Ms Ward puts it succinctly in her skeleton argument, the physical arrangements for mooring do not affect the permanent character of occupation when a boat has occupied the same piece of land for over 2 years.
- Ms Ward identifies a third alleged error on the part of the Tribunal. She submits that the Tribunal was not entitled to take account of "the evidence of extensive deletion of live-aboard craft from some Council Tax valuation lists and the non-inclusion of other residential vessels on the estuary."
- Mr Knafler QC does not seek to suggest that the Tribunal was entitled to take these matters into account. He submits, however, that the Tribunal took such matters into account for a very limited purpose namely to support its conclusion that it was open to the Tribunal to have regard to factors other than the duration of occupancy when determining whether or not the period of occupancy was "not too transient" or "sufficiently permanent". Accordingly, submits Mr Knafler QC, the error on the part of the Tribunal was not a material one and it should not lead to the Appellant succeeding in his appeal.
- I accept Mr Knafler's submissions in relation to this ground of appeal. It seems to me to be clear that the Tribunal used the immaterial consideration only for the limited purpose to which he refers. I would not allow this appeal on the basis of this ground.
- My conclusion is that the appeal must succeed because the Tribunal failed to apply the correct legal test when determining the Respondent's appeal.
- In his skeleton argument Mr Knafler QC submitted that if I took the view that the appeal should be allowed I should remit the case to the Tribunal for reconsideration. Obviously that is a step which is open to me.
- Having considered the matter with care, however, I do not propose to remit the case to the Tribunal. There are no facts in dispute which need resolution before the Tribunal. I am in as good a position as the Tribunal to apply the correct legal test in this case.
- Applying the correct legal test I have no doubt that the Appellant is correct in his assertion that The Cannis should be entered as a dwelling in the Council Tax Valuation List from 11 December 2008. The boat had remained in a fixed position for a little more than 2 years by the time of the appeal before the Tribunal. In my judgment, such a period was and is consistent only with the conclusion that the length of occupation "was not too transient" or "sufficiently permanent". In the context of this case I do not regard the mooring arrangements deployed by the Respondent to be a relevant consideration in assessing whether the period of occupation is sufficiently permanent. The fact that the boat is capable of being used as such cannot, of itself, lead to a finding of insufficient permanence. Essentially, the vessel was turned into a dwelling many years ago and was used as such throughout the whole period of relevant occupation. It was never used as a boat during that period.
- I propose to direct that the entry into the Council Tax Valuation List which was deleted by virtue of the order of the Tribunal should be restored.
Mr Justice Wyn Williams:
"a) by virtue of the definition of hereditament in section 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force; and
b) is not for the time being shown or required to be shown in a local or a central non-domestic rating list in force at that time; and
c) is not for the time being exempt from local non-domestic rating for the purposes of part (iii) of the Local Government Finance Act 1988 ."
"Mr Rowe has said that there are four necessary ingredients in rateable occupation, and I do not think there is any controversy with regard to those ingredients. First, there must be actual occupation; secondly, that it must be exclusive for the particular purposes of the possessor; thirdly, that the possession must be of some value or benefit to the possessor; and, fourthly, the possession must not be for too transient a period."
"Fourthly, it is said the possession must not be for too transient a period. I think that fourth requirement is met by the fact that the work has taken a matter of 2 years to carry out."
"I think that the Respondent's submission was right, namely, that the test of rateability is whether there is evidence that the structures were enjoyed with the land and enhanced its value. In considering this, the intention of the erector and the other elements of annexation, period, size, quality, amenities and purpose are all material. All these factors are important, but intention, and certainly what I may call the "conscious element" in intention, is no more than one factor and its importance is not overriding."
Lord Oaksey formulated his test for rateability in one pithy sentence. At page 375 he said:-
"A consideration of the authorities leads me to the conclusion that an occupier who makes any beneficial use of land is rateable if he does so for a period which is not transient."
It is necessary to quote more extensively from the speech of Lord Radcliffe. At page 380 he said:-
"In my opinion, the present case really centres round the question whether the sheds, created on a building site by a building contractor for the purpose of his operations, involves such a degree of permanency in his occupation as to make it a rateable one. I have no doubt that, in considering this, it is at any rate relevant to ascertain to what extent and in what way these constructions have been made a fixed part of the site on which they stand, for the more casually they are attached the less likely it is that the occupation of them will be found to be a permanent one. In this sense it may be of some importance to enquire whether they are chattels or not. But to make the whole issue of rateability depends on the bare issue, for instance, whether a particular structure has or has not foundations in the ground which give it a measure of lateral as well as subjacent support would be to use a legal distinction for a purpose for which it was never intended.
At page 381 he continued:-
Certainly it is true that the law demands that an occupation to be rateable should be permanent. But then it is equally certain that permanence does not connote what it might appear to in this connexion. It is rather easier to say what it does not mean than what it does. An occupation is not the less permanent because it is that of a lessee who holds under a lease for a fixed term. In other words, there is permanent occupation however clearly the end might be in sight. More than that, an occupation can be permanent even though the structure or other chattel which is the means of occupation is removable on notice. it may be that "permanent" signifies no more than continuous, as opposed to intermittent, physical possession of the soil, as is suggested by the learned editors of Ryde on Rating (see 10th ed., p. 39). However that may be, it is well settled that a tenant at will has an occupation that is sufficiently permanent to carry rateability. If so, I see no reason why the contractor's occupation of his huts during the pendency of the building contract should not produce a similar result.
Finally at page 382 Lord Radcliffe said:-
"But, in my opinion, within very wide limits, which are not overstepped in the present case, the question whether there is sufficient permanency of occupation is essentially a question of degree and as such is a proper question for the final determination of the Lands Tribunal. If the evidence had been, as it was not, that the huts or sheds were constantly being moved from one site to another, so that there was no real appropriation of any particular area of soil to the purposes of occupation, I can see that it might be necessary to say that the law did not admit so transient an occupation to be a rateable one. But all that we know is that one structure was once moved in the course of the operations and I do not think that we ought to assume that the occupation was in fact more transient than the evidence suggests. If so, 18 months on the site does not present itself to me as something inherently too brief for rateability. The rate is an annual impost on the occupier in respect of his profitable occupation of land; it is not a capital charge on the owner in respect of the property interest in the soil. If such an occupation in fact endures for a year or more I do not see why the occupier should not contribute to the current fund of the rating area for that period. The mere brevity of his occupation will be itself the cure of any hardship in his liability."
Finally, I refer to Lord Tucker. At page 384 he expressed himself as follows:-
"A hereditament only becomes a subject of rateability if there is a sufficient element of "permanence" in its occupation. This is essentially a question of fact and degree. It has long been settled that occupation for a defined period of time or even under a tenancy at will or by virtue of licence subject to revocation at any time may not be too transient to be regarded as "permanent". See, for example, Cory v Bristow, where the moorings were subject to removal at a week's notice from the conservators. If, therefore, the sites on which these huts stood, apart altogether from the huts themselves, were exclusively and beneficially occupied by the contractors for a sufficient length of time, they would become rateable hereditaments. The presence of the huts thereon would merely be an element enhancing the value of their occupation. In this case their presence is also a factor to be taken into consideration in deciding whether there has been a sufficient "carving out" or appropriation of a particular portion of the site to amount to exclusive occupation by the contractors."
" .the correct position 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."
Both Dankworths LJ and Salmon LJ agreed with the judgment of Lord Denning.
" .under English rating law .liability to be rated rested on occupation of property; that although such liability was limited to hereditaments in the nature of land, a chattel on or connected with the occupied land could also be rated if it were enjoyed with and enhanced the value of the land; that occupation of a floating vessel horizontally connected to adjacent land was rateable where such occupation was actual and exclusive, had a degree of permanence and was of benefit to the occupier, even if there were no vertical physical connection between the vessel and the land; and that since the vessel occupied a fixed position in the river immediately above the licensed foreshore and riverbed for a period of 9 years without interference from the licensors and since such occupation was both exclusive, notwithstanding the interposition of water between the vessel and the riverbed, and of substantial benefits to the company, it constituted rateable occupation of the licensed area of the riverbed for which the company was liable."
"44. The four conditions of rateable occupation as set out in John Laing & Son Ltd v Kingswood Assessment Committee [1949] 1 KB 344, 357 and approved in London County Council v Wilkins [1957] AC 362 are (i) actual occupational possession (which involves actual as opposed to intended user of the land in question); (ii) occupation or possession which is exclusive (i.e. if the occupier can exclude all other persons from using the land in the same way as he does); (iii) occupation or possession which is of some value or benefit to the occupier/possessor; (iv) occupation or possession which has a sufficient quality of permanence; see generally Ryde on Rating and the Council Tax, loose-leaf ed, Division B, paras 61-62.
45. The cases culminating in London County Council v Wilkins and Field Place Caravan Park Ltd v Harding [1966] 2 QB 484, which developed the principle that chattels may be rateable if enjoyed with the land and enhancing its value, have also made clear that the placing of a valuable chattel in or on land may itself be all that is required by way of occupation of the lands to render the chattel and the land together a rateable hereditament.
46. Assuming for a moment that condition (i) can be satisfied, in the sense that the Lands Tribunal was entitled to hold that the vessel could properly be regarded as occupying the riverbed beneath (see further below), there seems to me no room for doubt that conditions (ii)-(iv) were satisfied in this case.
47. So far as condition (ii) is concerned, when a person occupies land in respect of which he has no title to the exclusive occupation or possession but his occupation is exclusive in fact, then he is rateable in respect of that occupation. It seems to me that the question is identical to that enunciated by Lord Russell in Westminster City Council v Southern Railway Co [1936] AC 511, 532, namely whether the person sought to be rated has the enjoyment of the land "to the substantial exclusion of all other persons". As made clear in that case, at p 533, the relevant question is: what in fact is the occupation in respect of which the person is said to be rateable and, in that respect, it is immaterial whether the title to occupy is attributable to a lease or a licence. The substance of the document granting the right of occupation is highly material; however, what is material is not so much the precise terms of the grant but whether the occupation is in fact greater or lesser than the terms convey. It is also the position that the reservation by the grantor of a right which is never exercised and could not be fully exercised without destroying the grant is to be disregarded: per Lord Wright at p 567.
48. The factual position in this case, as already indicated, was that the vessel between 1990 and 1999, under successive licences from the Crown Estate Commissioners, occupied a fixed position in the river, immediately above the area of the foreshore and riverbed the subject of the licence. While the licence stated that its terms were not to be construed as giving exclusive use of the disputed area to the appellants, the liberty of the commissioners to grant elsewhere any rights or easements over the relevant land was limited by the proviso that it should not thereby prevent the placing and maintenance of the vessel in accordance with the licence. Nor, as the agreed facts stated, were any other or "rival" rights granted by the commissioners during the entire period that the vessel was moored in position under the terms of the licence. In these circumstances it is clear that if the vessel could be properly regarded in occupation of the riverbed beneath, it was de facto in exclusive occupation.
49. So far as condition (iii) is concerned, it is plain that the occupation was of great value and benefit to the appellants as occupiers. Equally, so far as condition (iv) was concerned, there was a period of occupation of some nine years with a single brief interruption on some unspecified date when the vessel was temporarily removed from its moorings by tugs. I therefore return to consider condition (i).
50. Throughout a period of nine years, the vessel was placed in position over the licensed area of riverbed beneath. While the principle stated in London County Council v Wilkins [1957] AC 362 and Field Place Caravan Park Ltd [1966] 2 QB 484 dealt with structures which were physically placed upon dry land, and there were not in this case any moorings within the riverbed by which the vessel could be said to occupy the riverbed (cf Cory v Bristow App Cas 262), it does not seem to me that the interposition of water between the vessel and the riverbed of itself acted in any significant manner to deprive the appellants of occupation of the area of the riverbed the subject of the licence. The "permanent" presence of the vessel was sufficient to constitute de facto exclusive occupation of that part of the riverbed. That view seems to me entirely consistent with the observations of Lloyd and Mann LJJ in Westminster City Council Woodbury [1992] Ran1, 8-9, 14, quoted at paragraphs 30 and 31 above."
"It remains for me therefore to consider what weight ought to be attached to the fact that the clubhouse is moored for the winter months each year the actual months were not specified to the island in the middle of the lake. Does this movement lead to the conclusion that contrary to Lord Denning's words in the Field Place case, there is not such a degree of permanence that the chattel with the land can together be regarded as one unit of occupation? This question seems to me to be the same question as that which has been asked when the fourth ingredient of rateable occupation has been under consideration "possession for not too transient a period". There have been a number of cases where the period of time during which occupation has been maintained has been taken as the relevant factor. For example, in John Laing's case, although the question of transience was not directly an issue, the temporary structures were in position for two years; in Wilkins' case, for about 18 months although one hut was moved once during a period of about 20 months and so must have spent a maximum of 10 months on one site. In both cases it was held that there was rateable occupation of the huts. Similarly in Hilleshog Sugar Beet Breeding Co Ltd v Wilkes parcels of land were occupied for 9-10 months in a year. This was held by the Lands Tribunal to be not too transient a period to establish a rateable occupation notwithstanding that in subsequent years the occupation passed on to the other land. Sir Michael Rowe QC, President, said [1971] RA, 275, 288:-
"The ratepayers' possession of the plots they hold in any one year is not intermittent nor is it casual; it is a continuous possession for nine months or so, which cover the whole, at least in most years, of the period during which the land can be cultivated and planted up and the crop grown to maturity and harvested".
In Sir Robert McAlpine & Sons Ltd v Payne it was held by the Lands Tribunal that occupation for 6-7 months was not enough. In his decision, Sir Michael Rowe drew a distinction between occupation by a settler and that by a wayfarer. The distinction appears to have been taken from a passage in the judgment of Lush J in R v St Pancras Assessment Committee [1877] 2 QBD 581, 589:-
"Thus a transient temporary holding of land is not enough to make the holding rateable. It must be an occupation which has in it a character of permanence; a holding as a settler not as a wayfarer".
These authorities suggest to me, that although duration of occupation is an important factor in determining degrees of transience, the character of the occupation can also have a bearing on its permanent nature. The movement of the clubhouse in the present case to another place within the hereditament does not in my judgment disturb the permanent character of a link between occupation of the chattel and occupation of the rest of the hereditament."
• The Respondent, his wife and children occupied MV Cannis as their home;
• They had moored the MV Cannis at Chivenor Park, Barnstaple EX31 4AY since 11 December 2008;
• The MV Cannis was a Thames tugboat, built in 1953 and renovated by the Respondent. It was not a houseboat but a live-aboard seagoing vessel, registered in the Small Ships Register;
• Although vessels had moored at Chivenor Park, before and after the arrival of MV Cannis, no formal mooring had been laid out or constructed;
• The Respondent had constructed a tidal fore and aft mooring (i.e. he had anchored the MV Cannis to the riverbed, fore and aft) protected by a pit. However, these were no more than sensible precautions in the event of unsettled weather and did not establish a formal mooring independent of the MV Cannis's presence;
• On one occasion the MV Cannis had broken free of her moorings and the Respondent had returned her to a slightly different location;
• On another occasion, the Respondent had moved the MV Cannis in order to dig out a mud berth (the "pit") so that she grounded level when the tide ebbed;
• The boat was surrounded by high water, when access had to be obtained with a tender;
• There was no sewerage facility and no other land services except for a hosepipe for water;
• The Respondent and his family had land access through the Chivenor estate but paid no rent or licence fee to the Crown, which was understood to own the river bed;
• No other vessel on the Taw had been entered in the Council Tax valuation list;
• All entries relating to live-aboard craft at Bristol harbour and marina had been deleted as had all but 3 entries at Gweek in Cornwall and those 3 remaining were clearly houseboat structures on permanent quayside locations;
• The VTE did not doubt the Respondent's intention to move MV Cannis to another berth in February 2011;
• The dispute had arisen after the Respondent had attempted to make a voluntary financial contribution to the community through which he was passing, which resulted in a newspaper Article.
"16. Both parties identified the nub of the question in terms of the distinction between the settler and wayfarer and the question whether the occupation of the area of riverbed and riverbank on which the MV Cannis was moored had acquired a sufficient degree of permanence to fulfil the fourth condition of rateability, that the occupation was not too transient in its nature.
17. Although the case law on caravans indicating one year was sufficiently permanent while 4-5 months was not, and on building site huts where a period of 18-20 months was sufficient for such a structure to be rateable, provides some guidance and suggests that a year would normally be sufficient to establish that occupation is not too transient, Mr Northrop rightly points out that even the guidance note admits of some latitude. Each case would seem to turn on the facts of occupation, of which simple duration is just one part, and the evidence of extensive deletion of live-aboard craft from some Council Tax valuation list and the non-inclusion of other residential vessels on the estuary, (while in no way conclusive, since errors and omissions may occur) suggests a degree of judgment is required.
18. The panel is satisfied in this instance that no form of mooring was constructed or laid out before the MV Cannis arrived, although the area had been used for mooring other vessels both before and while the subject craft has been moored there. The arrangements Mr Northrop has made since the Cannis originally went adrift and grounded would be sensible precautions for any stay in unsettled weather which cannot be said to have established a formal mooring independent of the vessel's presence.
19. While not attaching great weight to the two periods when the vessel was moved, one of them arising from the drifting incident and neither of any great duration, or to the minor variation and location on its return, the panel is persuaded, having regard to the nature of the vessel and the overall circumstances of the mooring arrangements, that no rateable hereditament had been established and that neither the mooring nor the MV Cannis should be entered as a dwelling in the Council Tax valuation list."