Reeves v Northrop [2013] EWCA Civ 362

Case No C1/2012/0701

[2013] EWCA Civ 362

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE WYN WILLIAMS

CO24632011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17 April 2013

Before

LORD JUSTICE HUGHES

LORD JUSTICE PATTEN

SIR ALAN WARD

Between

John Reeves (Listing Officer)Respondent

Randy NorthropAppellant

(Transcript of the Handed Down Judgment of

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Mr Stephen Knafler QC (instructed by Avon & Bristol Law Centre) for appellant

Miss Galina Ward (instructed by Rating & Valuation Team, HM Revenue and Customs) for respondent

Hearing Hearing date: 20th December 2012

Judgment

Sir Alan Ward:

[1]This case began with an article published in the North Devon Journal on 25th February 2010. “A family living on a houseboat near Dunstable say they are sick of being branded a “problem” by local authorities. Randy Northrop, 54, lives with his wife Susan and 12 year old son, Benjamin, on an old tug boat called Cannis which is moored off Chivenor Business Park. Randy, a Californian who moved to England in the late 1980s, has lived with his family on the ship for more than 9 years but only arrived in North Devon a year ago. Randy told the Journal the boat was a labour of love which makes an ideal and cheap family home. He said:

“I bought the boat from a man in Bideford for £11,000 in 2001. We were living in Bristol at the time and decided to buy a boat because we were fed up living in a grotty council house in a rough area of the city. I am an electrical engineer and handyman by trade and have spent the last eight years renovating the ship … Most of the hard work is now done and it’s mainly DIY and painting that’s left.”

Randy and his family arrived in North Devon in October 2008 having spent the previous 8 years moored in Bristol. Randy said:

“It was a real shame we had to leave Bristol but the authorities there aren’t too keen on “live-aboards”

. Susan had a great job as a music teacher at … School and I had regular handyman work coming in. Things were pretty sweet. However, it wasn’t to be, so we moved slowly down the coast, stopping at Minehead, Ilfracombe and Instow en route to Chivenor. The Northrop’s houseboat, a former Thames tug built in 1953 has many of the features that prospective house buyers look for. There are two good-sized bedrooms, two open fireplaces, gas central heating, a large sitting room and kitchen and several flat screen TVs. Old admiralty maps decorate the ceiling and there is even a grand piano and dedicated music room on board. Randy said:

“A lot of people don’t realise how we live here. We don’t get grief from anyone and most are quite envious. I am upset that councils and groups such as the TAW and Torridge Estuary Forum label us as a problem – they don’t know us so how could they make that judgment? We may live differently to those in concrete boxes but we’re not bad people. We work, we pay taxes – the boating community are no different to the rest of the population … We may not pay council tax but neither do we receive services such as electricity, water or having our bins emptied. We don’t live on a boat in a deliberate attempt to screw the council over – we just enjoy it.” … Benjamin, who is home educated by Randy and Susan, added: “I love living on a boat. It’s exciting.”

I can readily imagine that it is.

[2]The article excited a flurry of email comment with views being expressed, temperately and intemperately, for and against Randy and his family. One correspondent suggested sending the local authority “some voluntary council tax and make them acknowledge you have your right to live as you choose.” Randy Northrop accepted the advice. He sent an email to the North Devon District Council asking how he could go about paying some contribution in lieu of council tax saying that he did that “as a gesture of good citizenship”. That was a big mistake because, as he explained with bemusement, the predictable result was that:

“Anyway, in about 2 weeks, we got a reply … no – statement – that we were now banded Band “A”, fait accompli! I couldn’t actually believe it. I sent another email, tactfully explaining I did not mean for us to be banded; indeed we should not have been banded; as we were a BOAT; not “property”

. No response. Eventually I was contacted by the VOA in Exeter; and after an email; and a long phone call; I at least “got the picture”; the Council had simply asked the VOA to band me; as “proof” of being liable; the Council said we were “there too long”; and sent a copy of our newspaper article as further “proof”? I guess it was up to me to “prove” my innocence.”

[3]Thus began the sad tale that has led Randy Northrop to be the appellant challenging the order made by Mr Justice Wyn Williams on 6th March 2012 when he allowed the Listing Officer’s appeal against the decision of the Valuation Tribunal for England upholding Mr Northrop’s appeal and ordering that the entry in the Council Tax Valuation List relating to the motor vessel “Cannis” be deleted from the list with effect from 11th December 2008.

The appeal to the valuation tribunal

[4]Mr Northrop (I sense he would prefer it if I simply called him “Randy”) represented himself and made a good job of it. (That is not to denigrate the efforts since made on his behalf by Mr Stephen Knafler QC who now represents him and whom I have always found gives the court excellent assistance). Randy began his written submission with a quote from Mark Twain:

“Twenty years from now you will be more disappointed by the things you didn’t do, than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor, catch the trade winds in your sails. Explore. Dream. Discover.”

[5]Randy had taken on board (if I may be forgiven the pun) the Council Tax Manual – Practice Note 7: Application of Council Tax to Caravan Pitches and Moorings, which set out to explain the law and circumstances which require the mooring for a boat to be banded for council tax purposes. There is no definition of “boat” for the purposes of the legislation. He would have learnt that in order to be subject to council tax, property must be a dwelling as defined in s. 3(2) of the Local Government Finance Act 1992 namely:

“3(2) Any property which – (a) by virtue of the definition of hereditament in s. 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 the local or 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 and Finance Act 1988.”

Thus to be treated as a dwelling and assigned to a council tax band, the mooring must both be a hereditament and be domestic property. (a) by virtue of the definition of hereditament in s. 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 the local or 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 and Finance Act 1988.”

[6]To be domestic property s. 66 of the Local Government and Finance Act 1988 applies, namely:

“66(1) … Property is domestic if – (a) it is used wholly for the purposes of living accommodation, … … (4) Sub-section (1) above does not apply in the case of a mooring occupied by a boat, but if in such a case the boat is the sole or main residence of an individual, the mooring and the boat, together with any garden, yard, outhouse or other appurtenance belonging to or enjoyed with them are domestic property.”

S. 66 was however amended by the Rating (Caravan and Boats) Act 1996 as follows:

“(1)(3) For sub-section (4) of that section, moorings, there is substituted – (4) Sub-section (1) above does not apply in the case of a mooring occupied by a boat, but if in such a case the boat is the sole or main residence of an individual, the mooring and the boat, together with any garden, yard, outhouse or other appurtenance belonging to or enjoyed with them are domestic property.”

I am sure Randy followed every word of that. (a) it is used wholly for the purposes of living accommodation, … … (4) Sub-section (1) above does not apply in the case of a mooring occupied by a boat, but if in such a case the boat is the sole or main residence of an individual, the mooring and the boat, together with any garden, yard, outhouse or other appurtenance belonging to or enjoyed with them are domestic property.”

[7]Then he would have to grapple with the meaning of “hereditament”. He would be directed to s. 64 of the Local Government Finance Act 1988 which would inform him that:

“(1) An hereditament is anything which, by virtue of the definition of hereditament in s. 115(1) of the 1967 Act, would have been an hereditament for the purposes of that Act had this Act not been passed.”

That is astonishingly informative. Ss. (4) of s. 66 would tell Randy that:

“(4) A hereditament is a relevant hereditament if it consists of property of any of the following descriptions – (a) lands …”

S. 65 defines owners and occupiers – “(1) The owner of a hereditament or land is the person entitled to possession of it.

(a) lands …”

[8]The Practice Note, making a valiant attempt to explain what constitutes a hereditament, would have informed Randy that a hereditament is defined in s. 115(1) of the General Rates Act 1967 as “… “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.” S. 16 of that Act imposes liability to be rated in respect of occupation of property:

“16. Subject to the provisions of this Act, 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 according to the rateable value or respective rateable values of that hereditament or those hereditaments determined in accordance with the provisions of this Act.” (a) lands … shall be liable to be assessed to rates in respect of the hereditament or hereditaments comprising that property according to the rateable value or respective rateable values of that hereditament or those hereditaments determined in accordance with the provisions of this Act.”

[9]If prizes are to be offered for legislative gobbledegook then the foregoing would surely qualify. Having undertaken that trawl through these various statutes I confess to my shame I am no wiser nor would any ordinary citizen be without help from the Practice Note. That does at least make sense:

“4.2 Therefore the question to be considered is: “would a pitch for a caravan or mooring for a boat fall to be shown as a separate item under the old rating law?”

A formal pitch or formal mooring constructed or laid out perhaps with the provision for service will constitute a hereditment. This should be distinguished from a temporary wayfarer’s pitch, e.g. roadside or a mooring on a mud flat or a natural river bank which would have to be occupied for a sufficient length of time for it to constitute a hereditament. (See para 5 below). 5. Wayfaring sites – establishing a hereditament In the case of a piece of undeveloped natural river bank or unestablished pitch, that a boat or a caravan may use, the question of establishing a hereditament may be relevant. The examples of case law below concerning transience may be relevant precedents to follow in such cases, to determine whether the occupation of the land is merely temporary or transient. A gypsy caravan on a byway or a roadside verge may well have to be in place for say 12 months to establish the pitch. Similarly, a house boat anchored to a river bank or resting on a mud flat. These situations should not be confused with recognised pitches or moorings, which are already hereditaments. … 6. Summary of policy 6.1 The policy that the legislation is intended to achieve can be summarised as follows. Although this specifically refers to boats and moorings the same principles apply to caravans and their pitches. (a) If a boat which is someone’s sole or main residence is moored “permanently” at a mooring, then the mooring is domestic property, and both the mooring and the boat are subject to council tax. … 6.2 Whether the value of the boat or caravan can be included with the pitch is a matter of fact and degree. As a general rule, where a dwelling boat or caravan occupies a mooring or pitch for a substantial period of time - such duration would usually be for 12 months or more – it should be included in the band value, even if it moves away for brief periods of say 2-4 weeks, provided it then returns to its original mooring or pitch. The question to be asked is whether the occupation can be characterised as that of a ‘settler’ or ‘wayfarer’. If the latter, then only the mooring or pitch should valued.” “would a pitch for a caravan or mooring for a boat fall to be shown as a separate item under the old rating law?”

[10]Randy’s written submissions made these points. First he argued that his registered sea-going vessel was a boat not a houseboat. Secondly this was clearly not a permanent or residential mooring because it lacked sufficient permanence to be enjoyed with the land. Thirdly he was a wayfarer, not a settler. Fourthly, “our intentions are to leave this ‘mooring’ SOON”. He also made the point that at the Bristol marina where he formerly lived there was a time when every “live-aboard” was listed but the listings were then deleted.

[11]The Valuation Tribunal found at [12]:

“ There was no established residential mooring and he occupied a tidal fore and aft mooring protected by a pit which provided a degree of sheltered mooring for a fishing boat and other small craft in the summer. The boat had once broken free of her mooring, grounding at an angle to the beach. He had returned her to a slightly different location and secured her with lines to stakes and a tyre. The boat floated on the high tide and he had also moved her to dig out a mud berth so 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 a hose pipe with which they could replenish water tanks. They had land access through the Chivenor estate but paid no rents or licence fee to the Crown which was understood to own the river bed.”

[12]The tribunal did not doubt the intention to cast off but decided the case as follows:

“16. Both parties identified the nub of the question in terms of the distinction between settler and wayfarer and the question whether the occupation of the area of river bed and river bank on which the MY Cannis was moored had acquired a sufficient degree of permanence to fulfil the fourth limb of rateability, that the occupation is 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 the occupation, of which simple duration is just one part, and 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, (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 formal mooring was constructed or laid out before MY 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 initially 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 that 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 in location on its return, the panel is satisfied, having regard to the nature of the vessel and the overall circumstances of the mooring arrangements, that no rateable hereditament has been established and that neither the mooring nor the MY Cannis should be entered as a dwelling on the council valuation list. The appeal is allowed accordingly.”

The judgment of Wyn Williams J

[13]Miss Galina Ward for the Listing Officer submitted that the Valuation Tribunal had erred in law in that it failed to apply the correct legal test and/or misapplied that test and/or took into account immaterial considerations in reaching its decision.

The judge held:

“24. 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 ingredient of rateability, that does not mean that it will necessarily be unlawful for the 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”. … 28. 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. … 30. It is clear from paragraph 16 of the decision that the Appellant and Respondent accept 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 river bed, 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. 31. It was also common ground that for practical purposes The Cannis had remained in essentially the same position since 11th December 2008 except in the circumstances described at paragraph [29] above [a reference to the two occasions when it broke from its moorings]. That meant that it had been in its position on the river for more than a year by the time it was first entered into 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”. … 33. … I do not consider that the Tribunal necessary fell into legal error by taking account of factors other than duration of occupancy when determining whether the occupation had been not too transient. 34. That does not mean, however, that this appeal is bound to fail. It was incumbent on the Valuation Tribunal to apply the correct legal test. That means that the Tribunal was bound to consider the duration of occupancy as an important factor when determining whether the occupancy was “not too transient” or “sufficiently permanent”. 35. 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. … It also seems to me that the Tribunal was wrong to take account of “the overall circumstances of the mooring arrangements.” … 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. 38. 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. 39. 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." 40. Mr Knafler QC does not seek to suggest that the Tribunal was entitled to take these matters into account. He submits, however, that … 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. 41. I accept Mr Knafler's submissions in relation to this ground of appeal. …”

[14]Having concluded that the appeal should succeed, Wyn Williams J. went on to consider whether he needed to remit the matter back to the Tribunal but held that as there were no facts in dispute he was in as good a position as the Tribunal was to apply the correct legal test. Having done so he held that the boat having remained in a fixed position for a little more than two years, that was a length of occupation which was not too transient. In the context of the case the mooring arrangements were not a relevant consideration. The vessel was used as a dwelling throughout the period of that mooring and was never used as a boat during that period.

Discussion

[15]Like the judge, I turn to the authorities in order to ascertain the applicable principles bearing on this case. One of the earliest to which we were referred is Corey v Bristow

(1877) 2 App Cas 262

, a case involving the liability to be rated to the relief of the poor of the parish within which lay that part of the river where a derrick hulk was moored. I found Lord Hatherley’s speech helpful. At 275/6 he said: “As Lord Campbell expressed it in one of the cases last cited (Forest v the Overseers of Greenwich, 8 L EL & BL at p. 900), as regards the nature of the occupation the question is, whether it be “a permanent and profitable occupation of land within the parish” which seeks to assess the person in respect of such occupation. As regards the interest of the person who is to be rated it must be an interest in himself exclusively.” (I added the emphasis).

[16]That was followed in The Queen v The Assessment Committee of St Pancras

(1877) 2 QBD 581

where Mellor J said at p. 585/6:

“I agree with the opinion cited by Lord Hatherley in Corey v Bristow, as that of Lord Campbell C.J., in the case of Forest v Overseers of Greenwich, viz., that in order to be rateable the occupation must be permanent in its nature. The word “permanent” may not appear in every one of the judgments delivered at various times as a description of the kind of occupation necessary, but in the particular cases where no reference is made to the quality of permanence as being a necessary element the facts spoke for themselves with regard to that point.”

He also cited from the judgment of James L.J. in Corey v Bristow where he said:

“There is no dispute as to the general principle of law, viz., that where any part of the soil is permanently occupied by anybody for profitable purposes … then the person so occupying is rateable in respect of such occupation …”

Lush J added this at p. 588/9:

“Another element, however, beside actual possession of land, is necessary to constitute the kind of occupation which the Act contemplates, and that is permanence. … As the poor-rate is not made day by day or week by week, but for months in advance, it would be absurd to hold, that a person, who comes into a parish with the intention to remain there a few days or a week only, incurs a liability to maintain the poor for the next six months. Thus a transient, temporary holding of land is not enough to make the holding rateable. It must be an occupation which has in it the character of permanence; a holding as a settler not as a wayfarer. These I take to be the essential elements of what is called a beneficial or rateable occupation …”

[17]The next informative case is Westminster Council v Southern Railway

[1936] AC 511

. Junior counsel was Mr Michael Rowe. Lord Russell of Killowen said at p. 529: “In the next place I would make a few generalobservations upon rateable occupation. Subject to special enactments, people are rated as occupiers of land, the land being understood as including not only the surface of the earth but all strata above or below. The occupier, not the land, is rateable; but, the occupier is rateable in respect of the land which he occupies. Occupation, however, is not synonymous with legal possession: the owner of an empty house has the legal possession, but he is not in rateable occupation. Rateable occupation, however, must include actual possession, and it must have some degree of permanence: a mere temporary holding of land will not constitute rateable occupation.” (Again, I have added the emphasis).

[18]By 1948 Mr Rowe was leading counsel for the rating authority in John Laing & Sons Ltd v Assessment Committee for Kingswood Assessment Area [1949 1 KB 344 and he persuaded Tucker LJ of his analysis of the essential requirements. Tucker LJ said at p.350:

“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.”

I note that Jenkins J, dealing with the fourth requirement, considered that it had been met by the fact that the builders’ huts had been on the land for the two years that work was being carried out there.

[19]Mr Rowe was back in action in London County Council v Wilkins (Valuation Officer) [1957] A.C. 362 when he presented the Lord Chancellor with an argument which had “the perennial attraction of rugged simplicity”. The argument of junior counsel for the respondent was “as pointed as it was brief”. We are not always as lucky. In Viscount Kilmuir LC’sopinion:

“… 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. The question is eminently one of fact …”

Earl Jowitt thought it would not have been in the least surprising if the Lands Tribunal had come to a conclusion of fact that the structures in that case were “of such a transient nature” as to justify their exclusion from the valuation bill; “they might be of such an unsubstantial and ephemeral character as to make it obvious that they should not be included” on the valuation roll. Lord Oaksey’s conclusion was that:

“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.”

Lord Radcliffe 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, involve such a degree of permanency in his occupation as to make it a rateable one. … 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). … … 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 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.”

Finally, Lord Tucker said:

“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".”

[20]I note that in Hilleshog Sugar Beet Breeding Co Ltd v Wilkes [1971]RA 275, LT occupation of the land for 9-10 months a year was held by none other than Sir Michael Rowe QC, President of the Lands Tribunal to be not too transient a period to establish rateable occupation.

[21]In the light of those authorities it is not surprising that in Rudd v Cinderella Rockefellas

[2003] 1 WLR 2423

Potter LJ approved at [44] the four conditions of rateable occupation as set out in John Laing & Sons, describing the fourth as “occupation which has a sufficient quality of permanence”.

[22]This is a case about Council Tax. Liability is imposed on the resident of a dwelling by virtue of Local Government Finance Act 1992. It is common ground that The Cannis is capable of constituting a dwelling: the issue is whether it constitutes such a hereditament as would have been a hereditament for the purposes of the General Rate Act 1967 if that Act remained in force. The answer to that otherwise incomprehensible question is provided by the authorities to which I have referred above and those authorities make it clear beyond question that there must not only be occupation of the kind described in the first three requirements first propounded by Mr Michael Rowe QC in John Laing but, fourthly, that the occupation has the character of permanence about it and that it is not too transient to be ignored. The need for this fourth requirement must be obvious: rateable occupation does not arise for a resident who is only occupying for a matter of days or weeks or even months (see Lush J in St Pancras Assessment Committee) The occupier must have put down some roots which tie him to indefinite occupation and make him a settler in the property rather than a wayfarer passing by. The settler will have adopted the property for his residence for settled purposes as part of the regular order of his life for the time being. The wayfarer is an itinerant of no fixed abode.

[23]Various factors will help identify whether the case is one that has that degree of permanence or one that shows merely a temporary holding of the land. Thus intention may be a factor but, per Viscount Kilmuir in Wilkins, not an overriding one. The place may give the right clue: an established mooring may give more sense of permanence than dropping anchor at a random spot. In this case “the overall circumstances of the mooring arrangement” which, as the judge correctly found relate to the way in which the respondent secured his boat over the duration of his occupation do seem to me, though they did not seem to the judge, to have some, but, in this case, hardly material bearing upon the issue of transience or permanence. If anything Randy’s digging a pit in which the boat could lie is more indicative of the permanence of the mooring than its transience.

[24]Nor do I consider that the Valuation Tribunal erred in taking into account the evidence of the extensive deletions of live-aboard craft from other council tax valuation lists. They could not totally ignore that fact but it is one of such little weight that I fully agree with Mr Knafler and with the judge that that error was not a material one and would not lead to the appellant succeeding in his appeal.

[25]To overturn the Valuation Tribunal, the judge had to find that it erred in law. Ms Ward submits that the error was in failing to direct itself that the fourth requirement for permanence had to be answered by reference to the duration of occupation and nothing else. She is wrong about that. As I have already indicated, the character of permanence cannot be determined without having regard to all the facts and circumstances of the particular case. Time is one of those facts. If the Tribunal were saying no more than that in paragraph 16 of the decision then it could not be said that it had erred. In paragraph [16] the Valuation Tribunal directed itself that “each case would seem to turn on the facts of occupation, of which simple duration is “just one part …” with the emphasis added by me. What did the Tribunal mean by that? Did the tribunal mean that in every case time is always just one part of the factual matrix similar to other parts so never having greater weight than any other factor? Did the tribunal mean that time could not, or in this case would not, have greater significance than any other factor? Did the Tribunal preclude itself from recognising the importance of time in this case?

[26]Like the judge, I am driven to conclude that the tribunal failed to direct themselves that in the circumstances of this case the important factor was the time Randy had established his mooring in the estuary. It is noteworthy that what persuaded the panel (see [19] of the decision) was the “nature of the vessel and the overall circumstances of the mooring arrangements” and there was no reference to time except, unimportantly, to the two periods when the vessel was moved. Where the issue was whether the occupation was permanent or transient, occupation for two years was the single most important factor in the balance and not to recognize the cogency of time was a failure to identify and to take into account a relevant fact. That amounts to an error of law.

[27]Reading the decision of the Tribunal as a whole, it is plain to me that the Tribunal failed to recognise that the time Randy and his family were moored up in the estuary was not simply a factor of weight but the crucial, and on the facts of this case, the determinative factor. This family had made their home in their boat moored on the estuary for some two years by the time of the appeal before the Tribunal. If Lord Radcliffe was able to say in London County Council v Wilkins that “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”, then the Tribunal had to explain why they did not reach the same conclusion in this case. There is simply no indication at all in their decision that they regarded that length of time as the highly relevant factor. It was not enough for the Tribunal to direct itself that “simple duration is just one part”. In the circumstances of this case the duration of two years is so overwhelming a factor that without any adequate explanation of how and why that factor was outweighed by others, the Tribunal, in my judgment, erred in law.

[28]I therefore agree with the judge that the appeal against the Tribunal’s decision should have been allowed.

[29]I also agree with him, despite Mr Knafler’s able submissions, that the facts were not in dispute and that no reasonable Tribunal properly directing itself could have come to any other conclusion but that this motor vessel was correctly entered onto the valuation list.

[30]I am afraid, therefore, that Randy Northrop must lose and the appeal must be dismissed. I have a sneaking sympathy for him because he did not use many of the services which council tax is supposed to provide and it may have been harsh to list him in band A. But all of that is of no moment. He had indicated that he was soon to move and he has moved from the mooring. He has thrown off the bow lines and sailed away from the safe harbour though whether to catch the trade winds in his sails or just withstand the buffetings of the gales in the English Channel I know not. In as much as this is the penultimate judgment I shall write after 18 years in the Court of Appeal, I am a kindred spirit who has sailed away from the safe harbour of the Royal Courts of Justice, not at all sure how to explore, or what to dream or what I am about to discover.

Lord Justice Patten:

[31]I agree.

Lord Justice Hughes:

[32]I also agree.