“81. However, in reviewing the evidence the Panel considered it was important to begin with the nature of the business on the Maidstone Motorway Service site and the primary use to which the property was being put. The rentcharge deed clearly indicates what must be provided in order to comply with that contractual obligation. From the facts of the case it was equally clear that neither Roadchef's leased area of land nor the Petrol Service Station area could deliver that obligation in isolation. 82. The motorway service area necessarily offers different facilities which are provided in different locations on site; the hotel, the amenity building, the parking and the petrol station all served the overall needs of the travelling public to differing degrees and in doing so, comply with the overall legal requirement set down by the Secretary of State to provide the required facilities and services. The Panel considered that where a primary purpose is identified one would not seek to assess individually all the different uses to which buildings are put. It is accepted that the petrol filling station was not contiguous to the amenity building however the Panel considered that there was a sufficiently high degree of functional connection for the Panel not to accept that the petrol filling station is capable of a separate letting in the context of the rentcharge obligation for the site. 83. In this scenario the Maidstone Motorway Service area is required to provide a set of facilities in order to operate as a motorway service station, and those facilities, however organised, cannot be provided by separate and isolated operations; each being functionally dependent on each other to provide a whole. Roadchef must provide provision for 24 hour fuelling, and give access to the petrol station over their land, the provision of petrol is integral to the site services; the level of parking and toilet facilities provided by the Petrol Filling Station site is inadequate to satisfy the requirements of the rentcharge deed and must depend on the use of the amenity building area. It is clear that the complex, while offering different services as required, must function as an integrated operation to meet its legal obligations under the rentcharge deed.” 52. The VT was therefore satisfied that the evidence supported only one unit of assessment on site and turned to consider the four tenets of rateable occupation. At paragraph 86 the VT said: “86. The Panel considered that Esso's legal possession of the Petrol Station land is not, of itself, sufficient to make them actual occupiers. However, they had installed equipment and plant for the storage and delivery of the fuel and this would have given support to their claim to be in rateable occupation if Esso staff were employed on site; since this was not the case, the Panel considered that Esso were not making any actual use of the premises. The fact they provided the equipment to enable the business of selling fuel to be undertaken did not amount to the kind of actual use which the Panel believed necessary to make them rateable occupiers. Esso had never occupied the site in any ordinary sense, for the business of selling fuel to the public. They had provided the means to do so but had delegated this function to Roadchef for a commission and the quarterly visits by Esso's National Sales Manager could not constitute occupation. 87. Roadchef on the other hand had a substantial physical presence on the Petrol Filling Station site for which they held the Petroleum Licence and supplied the staff to process the fuel sales. The interchangeability of staff, although limited, did suggest that the site was managed as a single business by Roadchef; Roadchef maintained the area and equipment and managed the business on a day-to-day basis. Their presence was actual and ‘on the ground’ despite Esso's claim they were there because of an agency agreement. Esso had no direct presence other than through the plant and machinery which for the purposes of determining actual occupation was insufficient to weigh the argument in their favour. This was not a ‘master and servant’ situation since Roadchef were trading for themselves on the site while, at the same time, paying over the fuel receipts to Esso in exchange for their commission on sales. 88. The Panel accept that exclusive occupation does not mean that no one else has any rights in the premises. The case of Westminster City Council v Southern Railway Co. dealt with the general principle applicable to cases where there is occupation of parts of a larger hereditament and considered that the crucial question must always be ‘what, in fact, is the occupation in respect of which someone is alleged to be rateable and it was immaterial whether the title to occupy is attributable to a lease, licence or an easement’. 89. The Panel agrees that the fuel sales would be much higher than the general shop receipts but this was not the comparison to be made. The site was one unit of assessment and therefore the fuel sales should be considered in the light of the total income from all the facilities when it was likely the differential would have been much less. The Panel were of the opinion that the site as a whole was effectively occupied on a percentage of 80% Roadchef to 20% Esso and that put Roadchef in paramount occupation.”
"One thing I think is clear, that property must be rated according to what it is, and not according to what it might be. You may have a thing which, as it is, is one hereditament, but which is quite capable of being made into two."
"It was submitted that if premises are in the same occupation and if they are contiguous, or if they are within the same curtilage, then prima facie they are to be regarded as one hereditament; but that in such circumstances a distinct and separate user of some part of such premises may justify regarding that part as a separate hereditament. The case of the hotel at York station in the case cited was given as an example. But it was submitted that if premises which are in the same occupation are structurally and geographically separate and if they are capable of being separately let, then the use to which the premises are put must be entirely excluded from consideration and the premises must be held to be separate hereditaments.” 72. Morris LJ said that he did not feel able to accept that approach nor to try and lay down particular considerations as being either relevant or not relevant. It was a question of fact where, in borderline cases it was better to employ a commonsense assessment of the features of the case than to have recourse to some standard formula. He gave several illustrations and (at p.52) continued: "
"this test is so often decisive that it is a convenient starting point to the enquiry, but it is not decisive in all cases. Thus, though the premises may form a geographical unit, the manner in which different parts are used may justify the premises being treated as several hereditaments." 74. Once the hereditament is identified, as a matter of fact, the question who is in occupation of it arises. The four ingredients of rateable occupation have long been recognised as: firstly, there must be actual occupation; secondly, there must be occupation exclusive for the particular purposes of the possessor; thirdly, the possession must be of some value or benefit to the possessor; and fourthly, the possession must not be for too transient a period. ( John Laing and Son Ltd v Kingswood Assessment Area Committee[1949] 1KB 344 ; LCC v Wilkins[1957] AC 362 ). The requirement that occupation must be exclusive has given rise to the mistaken suggestion that there could not be two simultaneous occupants. This misconception was laid to rest by the House of Lords in Holywell Union Assessment Committee and Halkyn Parish v Halkyn District Mines Drainage Company[1895] AC 117 . A landowner granted a drainage company the right of drainage through a tunnel and watercourse in his land, reserving to himself a number of other rights. Lord Herschell said (at page 126): "
"Where there is no rival claimant to the occupancy, no difficulty can arise; but in certain cases there may be a rival occupancy in some parts who, to some extent, may have occupancy rights over the premises. The question in every such case must be one of fact -- namely, whose position in relation to occupation is paramount, and whose position in relation to occupation is subordinate; but, in my opinion the question must be answered in regard to the position and rights of the parties in respect of the premises in question, and in regard to the purpose of the occupation of those premises. In other words, in the present case, the question must be, not who is in paramount occupation of the station, within whose confines the premises in question are situate, but who is in paramount occupation of the particular premises in question." 76. After a discussion of some of the authorities he said (page 532): "
"In my opinion the crucial question must always be what in fact is the occupation in respect of which someone is alleged to be rateable, and it is immaterial whether the title to occupy is attributable to a lease, a licence, or an easement."
"I found some difficulty during the argument in understanding how the requirement that occupation must be exclusive could be reconciled with the well established rule that where there are two competing occupiers of the same hereditament, it is the paramount occupier who is rateable. If there are two occupiers of the same hereditament, how can either be exclusive? ... Another way of explaining the difficulty might be that an occupier, in order to qualify for rateable occupation, has only to be in exclusive occupation for his own particular purposes. This does not exclude others from occupying the same hereditament for their particular purposes. Paramountcy is a way of choosing between exclusive occupiers in that sense. The degree of control exercised by one occupier over the other, or by a third party, seems to be relevant to both questions -- that is to say, to whether an occupier is in exclusive occupation for his own particular purposes, and also to which of two competing occupiers is in paramount occupation." 79. The distinction between control and agency was addressed by Lord Reid in the case of Solihull Corporation v Gas Council [1962] 9 RRC 128 at 132 in these words: "
"Although a licence to make use of premises for some purposes may be so qualified as to reserve to the licensor sufficient control of their day to day use as to amount to continued occupation by the licensor ( see Byrne v City of Dublin Steam Packet Company 12 LR Ir 220) a licence to occupy premises as a "dwelling-house" prima facie transfers the "occupation" of the dwelling-house to the licensee, for it is inconsistent with the reservation of the day to day control of its use by the licensor."