Part 6: Exemptions - Part C: Parks
Instructions on when to undertake DLM on the 2010 and 2017 rating lists.
Prior to the passing of the Rating and Valuation Act 1961, irrevocable dedication to the use of the public by statute or by deed was necessary to ensure the exemption of a public park.
However, the provisions of Para 15 Schedule 5 Local Government Finance Act 1988 (LGFA 1988) dispense with the necessity for express dedication for parks that fall within its remit. The exemption so provided is thought to be restrictive, rather than broad in nature.
When considering the principles set out below in connection with hereditaments occupied by the Forestry Commission, please also see Rating Manual Section 5a - 431: Forestry Commission hereditaments and exemption.
2.1 The Legislation
The relevant legislation in Paragraph 15 Sch 5 LGFA 1988 is as follows:-
Parks
15. (1) A hereditament is exempt to the extent that it consists of a park which-
(a)has been provided by, or is under the management of, a relevant authority or two or more relevant authorities acting in combination, and
(b) is available for free and unrestricted use by members of the public.
(2) The reference to a park includes a reference to a recreation or pleasure ground, a public walk, an open space within the meaning of the Open Spaces Act 1906, and a playing field provided under the Physical Training and Recreation Act 1937.
(3) Each of the following is a relevant authority-
(aa) a Minister of the Crown or Government department or any officer or body exercising functions on behalf of the Crown.
(a) a county council
(b) a district council
(c) a London borough council
(d) the Common Council
(e) the Council of the Isles of Scilly
(f) a parish or community council, and
(g) the chairman of a parish meeting.
(4) In construing sub-paragraph (1)(b) above any temporary closure (at night or otherwise) shall be ignored.
2.2 The Requirements of the Legislation
The express terms of the exemption are thus as follows –
1) The exemption applies to a hereditament.
2) The exemption applies to a hereditament only to the extent that the hereditament consists of a park.
3) In this statutory context, a park is not strictly defined in 15(2) but includes a recreation or pleasure ground, a public walk, an open space within the meaning of the Open Spaces Act 1906, and a playing field provided under the Physical Training and Recreation Act 1937.
4) The exemption applies only to a park which is available for free and unrestricted use by members of the public. A park is to be treated as available for free and unrestricted use by members of the public notwithstanding that it is closed temporarily, whether at night or otherwise.
5) The exemption applies only to a park which has been provided by, or is under the management of, a relevant authority or two or more relevant authorities acting in combination.
6) A relevant authority is an authority which falls within those listed in paragraph 15(3).
3.1 What is a Park?
The above statutory provisions extend the meaning of ‘park’ beyond its ordinary and natural meaning as previously understood at the time of the ‘Brockwell Park case’, Lambeth Overseers v LCC [1897] AC 625 (see 3.2 below), so that it now includes, in this context, open spaces as defined by the Open Spaces Act 1906 and playing fields as defined by the Physical Training and Recreation Act 1937.
However for the purposes of defining a ‘park’, it is firstly necessary to be able to define the ‘park hereditament’. This concept has to be understood in the conventional sense as defined in section 64(1) LGFA 1988 and 115(1) General Rate Act 1967 (GRA 1967). A ‘park hereditament’ is one that, were not for the exemption provisions contained within paragraph 15, would be 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 rating list by applying the normal established rules – see John Laing & Son Ltd v Kingswood Assessment Committee [1949] 1 KB 344 and Woolway v Mazars [2015] UKSC 53 (29 July 2015).
In this context an indefinable area of open space land, moorland or beach cannot be a ‘park’ because it could never form a hereditament/unit of assessment.
3.2 The Brockwell Park case
Although paragraph 15(2) Sch 5 LGFA 1988 states that a park includes the facilities and amenities there described, the Act does not provide any definition of a ‘park’. However, the concept of a ‘park’ which is available for free and unrestricted use by members of the public has since 1897 been understood in the light of the principle stated by the House of Lords in Lambeth Overseers v London County Council [1897] AC 625 – the ‘Brockwell Park case’.
This case concerned a park acquired by the London County Council under a local Act and thereafter held and maintained by the Council as a park for the public’s use in perpetuity for exercise and recreation. The House of Lords held that the County Council were not in rateable occupation of the park. Lord Halsbury said (page 629) –
I do not think there is here rateable occupation by anybody. The ‘public’ is not a rateable occupier; and I think that one sentence disposes of the case….The fact that the park is vested in the county council does not make them the occupiers. It would be absurd to contend that wherever the legal estate is, there is occupation. A road is vested in some one, but, if a public road, there is no occupation of it any more than of a milestone or a direction post.
Lord Herschell said (page 631) –
…the question which has to be answered is, at what rent, if any, the hereditaments might reasonably be expected to let, taking one year with another. Now, it is well settled that, in answering this question, regard must be had to any restrictions which the Legislature has imposed upon their use, and the hypothetical tenant must be supposed to take them subject to those restrictions. Bearing this in mind, it seems clear that the park and the buildings thereon can have no rateable value. No tenant would give anything for them….Moreover, I am not satisfied that the county council are occupiers of this park for rating purposes, though the legal possession is, no doubt, vested in them. They seem to me to be merely custodians or trustees to hold it and manage it for the use of the public.
The reasoning of both Lords Halsbury and Herschell in the Brockwell Park case relied upon both absence of occupation and absence of beneficial occupation as the basis for relieving the County Council of liability to rates. In Kingston-upon-Hull Corporation v Clayton (VO) [1961] 3 All ER 118, the House of Lords clarified that reasoning in declining to extend the exemption to a public art gallery. Lord Tucker (page 123) and Lord Guest (page 124) both adopted Harman LJ’s statement (in the Court of Appeal) of the underlying rationale for the exemption –
Unless [the corporation] occupy merely as custodians, or in other words unless the rights of the public are such as to exclude all possibility of beneficial occupation by [the corporation], then the occupation on the part of the owners will be treated as beneficial for rating purposes.
Lord Guest also said of the Brockwell Park case (page 123) –
Both the Lord Chancellor and Lord Herschell seem to base their decision on the twin grounds that London County Council were not the occupiers of the park and that there was no beneficial occupation. But, when their speeches are examined, I think it is reasonably clear that the real basis of the decision was that there was no beneficial occupation because the park was dedicated for the perpetual use of the public and could not therefore be used for any profitable purpose.
Section 20 Open Spaces Act 1906 defines ‘open space’ as
"any land, whether enclosed or not, on which there are no buildings or of which no more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden or is used for purposes of recreation, or lies waste and unoccupied".
Note that the definition refers to ‘any’ land. This takes priority over the apparently restrictive adjective ‘open’. In ordinary speech one might not think to describe land covered with trees or water as ‘open space’; but if the statutory conditions are satisfied then any land, even land covered by trees or water, can be an ‘open space’ within this definition.
However, it should be noted that section 10 Open Spaces Act 1906 to which Section 20 relates empowers:-
"A local authority who have acquired any estate or interest in or control over any space or burial ground under this Act shall subject to any conditions under which the estate, interest , or control was so acquired :-
(a) hold and administer the open space or burial ground in trust to allow, and with view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under the proper control and regulation and for no other purpose; and
(b) maintain and keep the open space or burial ground in a good and decent state, and may inclose it or keep it inclosed with proper railings and gates, and may drain, level, layout, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them."
This section reinforces the concept that even an ‘open space’ as defined would need to be an identifiable hereditament vested in a local authority as ‘custodians of the public’. – see para 3.1 and para 3.2 above.
5.1 In addition to defining a hereditament, the exemption applies only to a park which is available for free and unrestricted use by members of the public, notwithstanding that it is closed temporarily, whether at night or otherwise (Para 15(1)(b) and (4)) - see para 2.1 above. In essence this means that the relevant authority does not have any beneficial occupation as the perpetual use by the public prevents profitable use. This principle also applies to any ancillary claimed as enhancing the park where it is either located within or formed part of the ‘park hereditament’, being inherently an essential element of the park entity.
However, where the facts show that there are restrictions on use of the ancillary facility caused by competing users, a distinct independence or excessive charging for use, beyond its sensible provision or management constraints, allowing the relevant authority to have ‘occupational benefits’, the ancillary part should ‘be carved out’ and separately assessed.
The principle is reflected in later decisions of the Courts and the Lands Tribunal, thus:-
1) North Riding of Yorkshire County Valuation Committee v Redcar Corporation [1943] KB 114, the Corporation had bought the foreshore at Redcar under section 164 of the Public Health Act 1875. Section 164 of the 1875 Act authorised an urban authority to “purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds…”. The Corporation then constructed swimming pools, a boating lake, a concert hall and other recreational facilities for the public’s use. Use of these facilities was subject to an admission fee. The public continued to enjoy free access to the foreshore itself, but the foreshore was not dedicated to the public. The Court rejected the Corporation’s claim for rating exemption under the Brockwell Park principle. Viscount Caldecote CJ said (page 129):-
"The basic principle on which the Brockwell Park case was decided was that, although the legal possession was vested in the county council, they were ‘merely custodians or trustees to hold it and manage it for the use of the public’. As Lord Halsbury said, the county council were incapable by law of using the park for any profitable purpose. They must allow the public the free and unrestricted use of it…I do not attach any importance to the fact that there is nothing to show any irrevocable dedication of this land and works and buildings to the use of the public, but, in truth and in fact, these hereditaments, taken as a whole, are not used so as to allow the public the free and unrestricted access of them… It is not disputed that it is necessary, in order to show that the corporation should be rateable, that their occupation should be a beneficial one …[The] test [is] ‘that there is no beneficial occupation, if by law no benefit can possibly arise to the occupier’. Applying that test, I think the corporation fail."
2) ** Burnell v Downham Market UDC** [1952] 2 QB 55, the Court of Appeal held that a playing field held by a local authority on trust for the perpetual use by the public for the purposes of exercise and recreation pursuant to the Open Spaces Act 1906 was exempt from rates, on the authority of the Brockwell Park case. The Court held that it was sufficient for this purpose that the land in question be held on trust for the public’s use and enjoyment ‘for the foreseeable future’ (page 64).
3) London County Council v Robinson (VO) (1955) R & IT 455, the County Council resolved to declare a riverside strip known as the Riverside Walk as open space and to lay it out and maintain it as such pursuant to the Open Spaces Act 1906. The Lands Tribunal held that the effect was to bring the Riverside Walk itself “within the ambit of the decisions in the Brockwell Park and Downham Market cases”, i.e. to exempt the Riverside Walk from rates.
4) Blake (VO) v Hendon Corporation [1961] 3 All ER 601, the Corporation had acquired land for use as a public park pursuant to section 164 of the Public Health Act 1875. The Court of Appeal held that the land having been acquired on that basis and the public having free and unrestricted use of the land for those stated purposes, the land was exempt for rates on the authority of the Brockwell Park case. The Court confirmed the view expressed in the Redcar case, that it was unnecessary to show an actual dedication to the public in order to gain the benefit of the exemption. Devlin LJ said (page 608A) –
In all the cases in which parks have been considered, it has been taken for granted that what the public get is, as in the case of a highway, the beneficial ownership of the land.
And at page 608E –
"It is sufficient [sc. to gain the benefit of the exemption] that it should appear [on the facts] that land acquired by a local authority under section 164 of the Act of 1875 is being used by the public for the purposes set out in that section and that they have free and unrestricted use of it (qualified, as may be, by a limited exclusion for ancillary purposes) for those purposes. That is sufficient material from which to infer that beneficial ownership has passed to the public and to negative occupation by the local authority. Of course, if the exclusion of the public from free use goes beyond what is justifiable as ancillary, the land, or the parts of it subject to the exclusion, will be rateable on the ground that they are no longer beneficially occupied by the public but are being occupied by the local authority for their own purposes."
5.2 Thus it is clear that the concept of a ‘park’ in rating legislation rests on the principle initially established by the Brockwell Park case (see para 3.2 above). In other words, the question whether the hereditament or part of the hereditament enjoys exemption from non-domestic rates as ‘a park’ turns primarily on the question whether the land in question satisfies the Brockwell Park principle, as applied in the subsequent cases set out above.
Thus for exemption to apply, it is fundamental to establish that the public’s use and enjoyment of the land in question is sufficient to deny any occupational benefit to the authority owning, providing or managing it. If it is not, the exemption from rates does not apply.
The need to show the absence of any such ‘beneficial’ occupation reflects the well established legal prerequisites for liability to rates, i.e. that there should be actual occupation of the hereditament, which is exclusive for the particular purposes of the occupier and beneficial to the occupier, and not for too transient a period of time (John Laing & Son Ltd v Kingswood Assessment Committee [1949] 1 KB 344).
The basis for the exemption from rates conferred upon ‘a park’ is that the public’s use and enjoyment of the hereditament for recreation and leisure necessarily excludes the opportunity for the relevant authority which owns, controls or manages the land itself to derive any benefit from the hereditament. This is the sense in which the statutory requirement of ‘free and unrestricted use by members of the public’ is to be understood. Otherwise, the test for rateable occupation will have been satisfied and the underlying rationale justifying the exemption will have been lost.
5.3 In considering this question the following guidelines should be borne in mind:-
a) If the public at all times has free access, as for example in the case of a cliff walk, the hereditament will be exempt;
b) if the exclusion of the public is no more than is necessary for good management, eg. shutting at night or when too full, the hereditament will be exempt: (but see sub-paragraph (d) below re control by admission charges);
c) if there is a substantial exclusion of the public which seems to be more than is necessary for good management in the interest of the public, or if the hereditament is only open to certain sections of the public, the hereditament will not be exempt;
d) If admission can only be obtained on payment and the premises are held for a profitable purpose eg. where the facts show that there is excessive charging for use of the hereditament, beyond its sensible provision or management constraints, allowing the relevant authority to have ‘occupational benefits’, the hereditament will not be exempt. Care should be taken in relation to Oxford City Council v Broadway (VO) 1999 RA 169 LT and the suggestion that even if admission can only be obtained on payment, the hereditament may still be exempt. In this case 3 outdoor swimming pools situated within Hinksey Park, Oxford were held to be exempt as part of the park even though a charge was made for entry in accordance with the Council’s policy for swimming pools throughout the city. Like other pools in the city the outdoor pools at Hinksey ran at a loss. Mr St. John Hopper concluded, 171 “the parties agree that charging does not, of itself, militate against the pools being ‘available for free and unrestricted use by members of the public’. The existence of fencing and the imposition of charges may be relevant to the main issue as to whether the pools were part of the park, but I find that they were ‘available for free and unrestricted use by members of the public’ within the meaning of paragraph 15(1)(a)”. The emphasis has been added but this fundamental finding clearly influenced the decision in that case. In any case, where this point occurs the advice of the relevant Technical Adviser should be sought.
e) In cases where nominal charges are made for car parking in line with the cost of provision, but otherwise the public (as pedestrians and cyclists for example) have free and unrestricted use, exemption should be conceded. See Hampshire CC v Broadway (VO) (1982 RA 309). Where doubt exists as to whether the charges made or the exclusion of the public conflicts with the concept of ‘free and unrestricted use’, full details should be submitted to the relevant Technical Adviser.
f) The hereditament may not be exempt even though the public are allowed onto the hereditament free of charge to watch the activities taking place. See South Yorkshire CC v Jones(VO) (1984 RA 204 - the Hatfield Marina Case.
A list of ‘relevant authorities’ is given in para 15(3). From 1 April 2000 it will include a Minister of the Crown or Government Department or any officer or body exercising functions on behalf of the Crown (Local Government Rating Act 1997 Section 33(1) Schedule 3 paragraph 27).
A National Park Authority is a public body, established by an order of the Secretary of State and is considered not to be independent of ministerial control. It performs its duties and exercises its functions for the public benefit on behalf of the Crown. On this basis, therefore, a National Park Authority can be considered to be a ‘relevant authority’.
In contrast, a ‘relevant authority’ will not include a Joint Planning Board see Fenwick (VO) v Peak Park Joint Planning Board [1983] RA 131.
The statutory language speaks of the park having been provided, in the past tense. This suggests that there is a single discrete act of provision. The statute also distinguishes between the concepts of ‘provision’ and ‘management’. This creates two limbs for exemption and accordingly, it is possible for a park to be provided by a qualifying ‘relevant authority’ but managed by a non-qualifying body and vice versa.
The exemption extends to any part which is ancillary to the use by the public of the rest of the park and it is immaterial if the public is excluded from that part except on payment, so long as the main purpose of the use to which the part is put is to facilitate or enhance the enjoyment by the public of the amenities provided in the remainder of the park.
7.1. Application of Exemption for Amenities Enhancing the Park
Where a Park is exempt under Paragraph 15(1) Sch 5, it will also be necessary to consider whether any facilities provided in connection with the park are essential amenities to the Park. If they are, then they may also be exempt.
There are several cases that provide guidance on this aspect.
The leading case on the treatment of ancillary parts of a park for rating purposes is Sheffield Corporation v Tranter (VO) [1957] 2 All ER 583. A park had been acquired and dedicated on trust by the local authority for use as public walks and pleasure grounds under section 164 of the 1875 Act. The park included a refreshment pavilion which was let commercially to a tenant who sold refreshments to users of the park. The local authority also imposed other conditions including the prices paid and where and when refreshments could be sold. The Court of Appeal held that the pavilion was exempt for rates as an essential amenity to the park. Lord Evershed MR said (page 591) –
…it must be a question fact and degree in cases of this kind whether it can be said that the refreshment pavilion…is in reality still an inherent and essential part of the park as an entity, providing a necessary amenity for the park; or whether the hereditament has been so carved out as to acquire a distinct status from the park and to render itself liable for rating assessment.
In London County Council v Robinson(VO) (1955) 48 R & IT 455, the Lands Tribunal held that the restaurant and cafeteria to which that case related was not ancillary to the Riverside Walk. Rather, it was out of all proportion to what one would expect to find to meet the needs of members of the public seeking to enjoy the amenities of the Riverside Walk. It was a commercial undertaking in its own right and rateable on that basis. This reasoning clearly reflects the approach stated by the Court of Appeal in the Sheffield Corporation v Tranter case.
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.
Neither necessity or essentiality, are valid tests.
The exemption also does not apply to an ancillary whose main purpose is not to serve the properly characterised principal park hereditament, nor 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.
7.2 Relevant Considerations
The relevant considerations whether occupation of premises may be exempt as an ‘essential amenity’ to a park are:-
1) Identify the ‘park’ to which the premises may be essential amenities to – this principal hereditament must properly constitute a ‘park’ in accordance with the principles described above.
2) Consider whether the ‘main purpose’ of the hereditament is an essential amenity to the identified park hereditament.
In considering question (2), the VO may have regard to:
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Does the facility serve a range of purposes? – see below
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If so, can it be said that the main purpose is to serve the park?
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The fact that the amenity has subsidiary purposes which do not relate to the park is not necessarily fatal but where the main purpose is not to serve the park, it is prima facie rateable. A binary approach should be adopted based upon the decision of Blake (VO) v Hendon Corporation (No 2) (1965 RA 67) where a bowling green was held to be a separately rateable hereditament because it was maintained for the benefit of the club (to which it was let out for its exclusive use) and not of the public and its use was not ancillary to the rest of the park the test for whether a hereditament constituted an exempt ‘essential amenity’ to a park was whether its ‘main purpose’ was to enhance enjoyment of the park by the public.
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Is the main purpose of the use to which (the ancillary part being considered) is put to facilitate or enhance the enjoyment by members of the public of the amenities provided in those parts of the park to which they do have access?
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Where mixed use of an amenity occurs, so that part comes under the parks’ exemption and part does not and where amenities serve both ‘parks’ and ‘non-parks’, this is more difficult and the VO will have to make a judgment; Does the ancillary facility owe its existence to the ‘park’ element or the non-park element?
The case of Lancashire County Council v. Lord (VO) [1987] RA 153 is useful in that it demonstrates that a degree of physical separation is not fatal for an essential amenity’ to be exempt.
Other cases of interest are set out in Appendix 1 to this section
7.3 General Principles: Enhancing Amenity or Separate Hereditament?
It will be necessary to apply the general principles set out above in order to decide whether the purpose of a facility is solely to enhance the public’s enjoyment of the park, or alternatively, it has been so carved out, as to be a distinct and separate facility. In the latter case, the facility will be rateable. Accordingly, each facility will need to be considered on its facts.
7.3.1 Car parks
Facilities, such as pay and display car parks where nominal charges for parking are levied (or charges which are at a level which might reasonably be expected to do no more than cover the cost of the parking provision and administration) will normally be exempt. However, care should be exercised where there is competing demand for use of the car park, for example by employees working at an adjacent hospital, customers using near-by shops or a railway station. Excessive charging could mean that the ancillary is a distinct and separate facility which could be carved out.
7.3.2 ‘Carved out’ facilities
There will be occasions, where a facility like a golf course, leisure facility, shop, car park etc is provided at a Park and is run at a high or penal cost to the public, this is where the high entry cost to the facility is framed to make maximum profit or where the public have little or no option but to pay if they wish to use facility. The charge as a question of fact will go well beyond what is required for the proper running and management of the facility. In these cases similar to the Redcar and Kingston upon Hull cases cited above (see para 5.1 and 3.2 above respectively) and the occupying authority will be obtaining beneficial benefit from the occupation. These matters will always be one of fact and degree but where this is considered to be the case and a facility could be said to be separate and distinct and could be carved out, then they should be assessed.
a) Public conveniences and cafeterias where the public can obtain refreshment, during their visit will generally be exempt. Exceptions will be where a cafeteria or restaurant also attracts custom from outside the park, this could be where the facility is used by local office workers at lunchtime or puts on live entertainment in the evening to attract custom etc.
b) Museums, Art Galleries these tend to be distinct and separate facilities which would not be subsidiary to a park.
In Cumbria County Council v Sture (VO) (1974 RA 472) the County Council was held to be in rateable occupation of a nature reserve. Having conceded that they were in actual and exclusive occupation which was not too transient, the only point at issue was whether the occupation was beneficial. The LT held that the appeal land was not struck with sterility by law or by its inherent condition and that the County Council were in beneficial occupation.
If a VO is requested by a billing authority to bring into assessment a nature reserve hereditament where the facts are not identical to those in the Cumbria decision, the case should be referred to the Technical Adviser for advice before action is taken.
A golf course will not, in itself, satisfy the definition of a park, within the meaning of paragraph 15(2), however it may be exempt if it used for a purpose which is solely to enhance the attractiveness of the park as a park, rather than having its own separate and distinct status.
In the past a number of golf courses operated by local authorities have been given exemption, either by agreement or by a decision of the Valuation Tribunal, and at present there are clearly inconsistencies because the matter is not free from doubt.
Most local authority golf courses which are part of a ‘park’ will be enclosed by fencing to ensure security, prevent damage to the greens etc. If games are available on a ‘first come first served’ basis on payment of a greens fee, and the local authority does not make a profit running the course, it may be argued that the facts are little different from those in Oxford City Council v Broadway (VO), but where use is restricted to specific persons, such as club members, at particular times of the day, the case for exemption is much weaker.
The leading case quoted in support of exemption is Burrell (VO) v Downham Market UDC [1952] 1 AllER 601, 45 R&IT 166. This concerned about 7 acres of land which was conveyed to the local authority subject to a declaration that the local authority “will hold the premises hereby conveyed upon trusts following, that is to say upon trusts for the perpetual use thereof by the public for the purposes of exercise and recreation pursuant to the provisions of the Open Spaces Act 1906”. The management of the ground was in the hands of the Council through a Playing Fields Committee, and the use included football, cricket and tennis. Football and cricket were arranged under an agreement between the two clubs and the Council, upon payment of a fee. The clubs were allowed to close the field and make a charge for admission or collection on the field on the dates of matches, subject to granting a right of access to users of the tennis courts and any other amenities provided by the Council on the field. There were other provisions for fixing a barrier round the football pitch, maintenance of order, practice, sub-letting etc.
The expenses of maintaining the field exceeded income from the football, cricket and tennis activities. The Lands Tribunal held that because the declaration made by the local authority to hold the land in the ‘perpetual’ use of the public, it was intended to sterilise the land for any purpose other than use as open space for the use of the people of Downham Market. The Council had no beneficial occupation, the land had only been committed to their keeping, and they were merely custodians and trustees for the public as in the Brockwell Park case. The member regarded the agreement with the cricket clubs and the charges made for admissions “a purely administrative method for regulating the use of the grounds”.
9.1 Establishing Rateability
To establish the rateability of a local authority run golf course in a park it is therefore necessary to show that the erection of fencing and the charging of admission is more than a means of controlling the use of the land or for security/health and safety purposes.
It is therefore essential to obtain the following information:
(1) What is the status of the club and who is responsible for management of the golf club - is it separately let out or operated by a ‘management company’ or does it form part of the responsibilities for maintenance, charging policy, rules etc of a committee or sub committee of the Council? If so, which committee? Is it the same committee that is responsible for the park?
(2) Is the club run ‘commercially’? - What is the level of green fees, membership fees, cost of hiring rooms for social functions etc compared to privately owned courses in the locality?
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Does the course make a profit?
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What are the trading figures for the years before and after the AVD, or at the time when exemption is to be considered?
(3) Is the golf course a ‘destination’ activity in its own right, or is there any evidence that users of the golf course also use the park on the occasion of their visit?
(4) Do members of the public have free and unrestricted access to any parts of the golf course? (But see the LT decision in Pennard Golf Club v Richards (VO) [1976] RA 203 - interference by members of the public is a matter of valuation not rateability.)
(5) If the land is owned by the local authority, under what statutory powers was it acquired, and what are the terms of the conveyance?
(6) Are any parts occupied by another party so that a separate unit of occupation is created eg licensed bar let and lounge let to a brewery company?
Before exemption is conceded in such cases, the Technical Adviser should be consulted.
Beaches, Promenades and Areas of foreshore can only qualify for exemption, on the basis that a relevant authority have acquired an estate or interest in or control over any space generally consisting of ‘open space’ within the meaning of paragraph 15(2) – see para 4 above..
As will be clear from the decided cases, a discriminating assessment of the facts will be required in each case.
For example, where a relevant authority have not taken steps to acquire a beach or foreshore, it will be impossible to define the hereditament which is a pre-requisite for exemption. It will not do to just identify ‘open space’ to which something can be an amenity. The ‘open space’, ‘public walk’, etc vocabulary in the statutory exemption for parks is intended to extend the definition of a ‘park’, but it does not exclude the preliminary requirement of identifying a hereditament. It should not be overlooked that the essence of the matter is an exemption from rateability and rateability cannot exist without the presence of a hereditament. So, logically, a hereditament must be identified before it can be said to be exempt in this way.
Hence it is always necessary to identify the hereditament (or hereditaments) of which the beach or foreshore in question consists or forms part. Otherwise the VO is unable to form a proper judgment whether the car park or public convenience fulfils the requirements for exemption as an ancillary facility as stated in Tranter’s case – see 7.1above. A ‘relevant authority’, be it a local authority or a National Park Authority may take ownership of sections of a beach – this would suggest that they could be in rateable occupation of these sections. Practically one would have to be able to ‘peg-off’ these sections of the beach in order to identify the extent of the hereditament.
Secondly, it is necessary to consider whether the hereditament (or hereditaments) in question provides the requisite free and unrestricted access to the public, as that requirement is explained in para 5 above. Otherwise, although ‘open space’ in a general sense, the hereditament in question will not qualify as a park on the basis of the principle established in this legislative context by the Brockwell Park case and other authorities.
There will be cases where areas of public beach, coastal walks and foreshore, satisfy the principle. However, the Redcar case (para 5.1 above) is an example of a case in which an area of foreshore was found to be rateable in the hands of the local authority. That case indicates that any significant degree of commercial exploitation of the beach or coastal area served by the car park, kiosk etc (whether by the local authority or its tenant or licensee) is likely to remove the justification for granting exemption under paragraph 15. Again, each case will be based upon its own facts.
The issue of way marked trails and footpaths in National Parks (as well as within Forests owned by the Forestry Commission) has been raised as a means of seeking to justify exemption from rates for car parks and other amenities which serve the public visiting and walking within the area of National Parks.
The case for exemption of such facilities faces difficulty. A car park or public convenience cannot claim the benefit of exemption under paragraph 15 simply by virtue of being located within the administrative area of a National Park. The exemption is conferred upon a hereditament, at least to the extent that it (i.e. the hereditament) consists of a park. Plainly, neither a car park nor a public convenience consists of a park in its own right (whether or not it consists of a hereditament). The case for exemption under paragraph 15 must, therefore, be made out under the principle established by the Court of Appeal in Tranter’s case - see 7.1 above.
It must be shown that the car park or public convenience provides a necessary amenity to a hereditament which itself consists, wholly or partly, of a park. A National Park is not such a hereditament. A National Park is not a hereditament at all. National Parks are large tracts of land in multiple ownership and occupation, comprising of many separate hereditaments.
Moreover, it seems unlikely that footpaths and other rights of way used by the public visiting a National Park for recreational purposes will qualify as parks, public walks etc under paragraph 15. Such footpaths and other rights of way generally pass across a sequence of separate land holdings, each of which is likely to constitute a separate hereditament.
Take the example of a footpath which passes through the fields of a hill farm in Snowdonia. The presence of the path, whilst of benefit to the public, is very unlikely indeed to exclude the farmer from enjoying any benefit of occupying his farm. Even the route of the path itself is likely to remain of substantial benefit to him for that purpose. It may provide an access track. It may form part of a field in which he grazes livestock.
This analysis derives support from the Lands Tribunal’s approach in Fenwick (VO) v Peak Park Joint Planning Board [1983] RA 131. The National Park Authority qualifies as a ‘relevant authority’ for the purposes of paragraph 15 of schedule 5 to the LGFA, but the reasoning of the Lands Tribunal in that case demonstrates the difficulties of seeking to found a claim for exemption from rates for a car park or similar amenity on the argument that the facility is ancillary to footpaths and rights of way within a National Park.
In the case of a car park which enables visitors to park and enjoy the view across a Lake in a National Park there is no difficulty in principle with the proposition that a hereditament consisting of or including a lake is capable of constituting a park - see 4 above. Provided that the public’s use and enjoyment of the lake is such as to satisfy the requirements for exemption as a park, the fact that the hereditament comprises of land covered with water does not present an obstacle. Moreover, a car park provided solely to enable the public to enjoy the visual amenities of a park would be capable of qualifying for exemption in accordance with the approach of the Court of Appeal in Tranter’s case (see 7.1 above). However, the facts will be critical in determining whether such a lake is correctly to be treated as (or forming part of) such a hereditament and whether the car park genuinely does serve no more than the function of an essential amenity to the lake as a park. However, it is likely that cases of this nature will be rare.
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.
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.