The landowner had granted to a drainage company an exclusive right of drainage though a tunnel and a watercourse in his land, with the right of placing works in the tunnel and the watercourse and of making other tunnels in connection therewith, reserving to himself mineral and other rights. The Court of Appeal had held that the company had no more than an easement, and was not in rateable occupation of anything.
Held: The appeal was allowed. The company was in occupation of the tunnel and watercourse for the purposes of and in connection with the enjoyment of the easement, and had the exclusive use of them for the purposes of drainage, the rights reserved to the landowner being subordinate to those granted to the company.
Answering the company’s submission that occupation, to be rateable, had to be exclusive, and that the rights reserved by the landowner showed that the company did not have exclusive occupation, Lord Herschell LC said: ‘It was strongly contended, on behalf of the respondents, that they could not be liable to be rated, inasmuch as they were not in exclusive occupation. There are many cases where two persons may, without impropriety, be said to occupy the same land, and the question has sometimes arisen which of them is rateable. Where a person already in possession has given to another possession of a part of his premises, if that possession be not exclusive he does not cease to be liable to the rate, nor does the other become so. A familiar illustration of this occurs in the case of a landlord and his lodger. Both are, in a sense, in occupation, but the occupation of the landlord is paramount, that of the lodger subordinate.’
Lord Davey said: ‘But then it is said that the occupation is not exclusive, inasmuch as the Duke of Westminster has reserved certain rights to himself and his licensees over the tunnels and water-course, and in pursuance of such reserved rights the Halkyn Mining Company have laid a tramway along one of the tunnels and have placed ventilating pipes there. Two questions arise: What is meant by exclusive occupation when used in connection with the subject of rating? And, What are the conditions subject to which the Duke exercises his reserved rights? It is clear that exclusive occupation does not mean that nobody else has any rights in the premises. The familiar case of landlord and lodger is an illustration. The cases shew that if a person has only a subordinate occupation subject at all times to the control and regulation of another, then that person has not occupation in the strict sense for the purposes of rating, but the rateable occupation remains in the other, who has the right of regulation and control.’
Judges:
Lord Herschell LC, Lord Davey
Citations:
[1895] AC 117
Jurisdiction:
England and Wales
Cited by:
Cited – JDE Plant Hire Limited v Barking and Dagenham London Borough Council QBD 2000
The company appealed against liability orders made against it. It owned premises which were subdivided and let to other businesses which it contended were the ones in actual occupation, since it did not benefit from physical, non-transient . .
Lists of cited by and citing cases may be incomplete.
Rating
Updated: 20 November 2022; Ref: scu.443327