Rating Manual - Volume 4 - Section 8 - Part C : Parks Appendix 1 - Other case law on Park exemption

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Other Cases of Interest

Appendix 1 to RM Volume 4 Section 8 Part C Parks

Other Cases of Interest

1. In Southern Miniature Railway Ltd –v- Hake (VO) [1952) R&IT 591 a study of the authorities suggested that whether or not a hereditament of this kind was exempt from rateability depended:

Firstly: on the hereditament being situated in a ‘park’ dedicated to the public. That condition must be fulfilled in every case.

Secondly, if the hereditament is concerned with the provision, for those normally resorting to the park, of a necessity or an essential amenity, it is immaterial that in providing the necessity or essential amenity that there is some measure of carving out and access is denied to the public or alternatively controlled by some charge for admission or for service. That follows from the judgements in the Sheffield Corporation case (see above).

Thirdly: where the hereditament is concerned with the provision of an unessential amenity or service and the publics’ rights of access to any part of the land used for that amenity or service is curtailed, then the nature of the amenity or service and the extent of the curtailment must be considered together. It is a question of “fact and degree” whether the curtailment of the public’s rights of access is outweighed by the benefit to the public of the amenity or service. Only in the latter situation will exemption apply.

Fourthly: it is immaterial that the provision of an amenity or a service which could legally be provided by a relevant authority is delegated to some outside contractor and charges made by the authority by way of rent or a share in the takings. It is also immaterial that the services are provided in the course of trade.

2. In Lancashire County Council v. Lord (VO) [1987] RA 153, the issue concerned an information centre, house, garage and premises “Carways” used in connection with and located approximately 570 yards away from a country park, “Beacon Fell”. The County Council’s appeal was allowed and the hereditament held to be part of the ‘Park’. It was held that the facilities formed an integral part of the attractions of the park and sub-served the enjoyment of the park, in that they helped the County Council realise its objectives in acquiring the land and securing the designation. The Member of the Lands Tribunal continued that provision of the facilities, namely the information centre, and the housing of the warden and park equipment at “Carways”, could be properly described as an essential amenity to the park. The appeal hereditament provided an ‘essential amenity’, not in the sense that the park could not operate without it, but rather because in essence it had no other purpose than to serve the objectives of the park.

3. In Manchester City Council -v- Fogg (VO) [1990] RA181 a historic mansion used as a museum and art gallery open to the public with free admission was held rateable because it was not part of the public park (agreed to be exempt) in which it was situated. It was held that the mansion was a separate and distinct amenity from the park and did not subserve the enjoyment of the park as a park.

4. In Oxford City Council v Broadway (VO) [1999] RA 169 (the most recent LT decision on these provisions) concerned open air swimming pools and a lido in Hinksey Park, North Oxford, which were found to be exempt. The VO had argued that they weren’t necessary or essential to the park. The Lands Tribunal held the swimming pools were used for a purpose, which was solely to enhance the attractiveness of the park as a park, rather than having their own distinct and separate status. Neither necessity nor essentiality were held to be valid tests. The Lands Tribunal also concluded that the swimming pools had not been ‘carved out’ of the park so as to acquire a separate and distinct identity because the pools were predominantly used for a purpose which was solely to enhance the attractiveness of the park.

These cases should be distinguished from the following where parts of a park were found not to be exempt.

5. Smith (VO) v St Albans City and District Council (1978 RA 147) - a heated indoor swimming pool situated within an exempt public park was held to be a separate and distinct amenity which did not subserve the enjoyment of the park as a park, and was not exempt.

6. Whitby (VO) v Cole (1987 RA 161) - a miniature railway situated at the seaside in an area known as a country park.

Other cases that may be of assistance include:

7. Blake (VO) v Hendon Corporation (No 1) (1961 RVR 552) - a public park;

8. LCC v Fulham Metropolitan Borough Council (1951 Vol 44 RIT 327) - restaurant in a public park;

9. Weston-Super-Mare BC v Escott (VO) (1953 Vol 47 RIT 23) - putting green, kiosk and selling point;

10. Bournemouth CBC v Peak (VO) (1952 Vol 45 RIT 262) - putting green.

Each case was decided on its own facts, and before any decision is taken to exempt a building or facility within a park, the VO must obtain all the facts relating to.

The tests established by the above cases are as follows:-

1) The exemption from rateability extends to a park (including an “open space” hereditament) which is capable of being defined as a ‘hereditament’ and is available for free and unrestricted use in perpetuity by members of the public.

2) The exemption will not be lost merely because the public’s use of the park is reasonably restricted or controlled in the interests of public order or the protection of the park’s amenities; but it is lost (or rather, not gained in the first place) if the public’s right to use it is subject to some general restriction or condition, or is limited (or potentially limited) in time rather than absolute and in perpetuity.

3) The exemption extends to premises within the park which are occupied for purposes necessarily ancillary to the use of the park by the public e.g. a refreshment pavilion as in Sheffield Corporation -v- Tranter(VO) and to premises or installations which are used for a purpose which is solely to enhance the attractiveness of the park as a park to the public, such as the miniature railway in Southern Miniature Railways Ltd –v- Hake(VO) [1959] R &IT Vol 52 591 and the open air pool in Redbridge LBC -v- Wand(VO) [1970] RA 245. Necessity or essentiality, are not valid tests. The exemption also does not apply to an ancillary whose main purpose is not to serve the properly characterised principal park hereditament.

4) The exemption does not apply to premises within the park, which have been so carved out as to acquire a distinct and separate status whether or not there has been such a carving out is a question of fact and degree in each case.

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