Arbuckle Smith & Co Ltd v Greenock Corporation

February 18. Viscount Kitmurr L.C. My Lords, this is an
appeal against an interlocutor of the Second Division of the Court
of Session by which the court adhered to an interlocutor of the
Lord Ordinary (Lord Guest) decerning against the appellants in
terms of the first conclusion of the summons for payment to the
respondents of £2,141 18s. 4d. [His Lordship stated the facts
and continued: |

My Lords, liability for rates in Greenock depends upon section
16 (1) of the Valuation and Rating (Scotland) Act, 1956, which
enacts: '' In the year first commencing after the passing of this
'" Act and in every subsequent year every rate levied by a rating
'' authority shall be payable by occupiers only .. .'' By section
379 (1) of the Act of 1947 '' occupier '' is defined as meaning
'the tenant or sub-tenant or any person in the actual occupation
"of land.'' Section 243 (1) of the Act of 1947 (as amended by
the Act of 1956) enacts that, save as otherwise provided in a
local Act, '' any rate levied by the rating authority shall not be
"payable in respect of lands and heritages if the lands and
"heritages are unlet, unoccupied and unfurnished throughout the
'whole of the year from Whitsunday to Whitsunday correspond-
'"ing to or as nearly as may be to the period for which the rate

17 1958 S.C. 615, 628.

A.C. AND PRIVY COUNCIL.

""is levied.'' We were assured that there is no relevant local
Act. '

The premises in question were admittedly unlet and unfur-
nished and the question is whether they were unoccupied in the
sense used in the context of rating.

Lord Patrick thought that the word '' actual '' in section 379
(1) of the Act of 1947 had been used to make plain that the
occupation which is necessary to make the occupier liable
to pay rates is de facto occupation as opposed to de jure
occupation, the kind of constructive occupation which might
be held to flow from mere ownership of land. I am disposed
to agree with him on this, and also when he says that for
the purposes of the Act of 1947 an owner of land must have made
some actual use of the premises in the relevant year before he
can be called on to pay rates. The crucial question, however, is
what kind of use is contemplated or, in other words, whether
it is sufficient to make alterations with the intention of carrying
on a business when the alterations are completed.

I do not think it is. I accept broadly the argument for the
appellants which can be put in this way. The sole purpose of
the appellants in acquiring the premises was to use them as a
bonded store in connection with their business as warehousemen.
The alterations were necessary in order that this purpose might,
if the alterations were approved by the Customs and Excise,
receive effect. Yet activity carried on in relation to premises, the
sole object of which is to make the premises fit for the only use
which is contemplated, does not amount to the kind of actual user
as is essential to rateable occupation. So long as the activities
were confined to making the premises fit for a contemplated pur-
pose, the premises were not serving the appellants' purposes as
warehousemen. The premises were not being applied to the
purpose for which they existed but were in an antecedent stage.
It must be remembered that under rating law it is open to the
owner to sterilise a property—whether by leaving a house without
furniture or otherwise—which is perfectly capable of being let for
a valuable rent. If, therefore, there is no use of premises accord-
ing to their nature I find it difficult to see how there is occupation
attracting liability for rates.

The learned judges who considered this case in the Court of
Session were obviously much impressed by the advantage which,
in their view, the appellants would receive from altering the
premises. I cannot, however, take their next step of saying that
because it was an advantage to the appellants to alter the

821

H. L. (Sce.)
1960

ARBUCKLE
SmiTH &
Co. Lp.
0.
GREENOCK
CORPORATION.

Viscount
Kilmuir L.C.

822

Efe Ts. (Se:)
1960

ARBUCKLE
SMITH &
Co. Lrp.

0.

GREENOCK

CORPORATION.

Viscount
Kilmuir L.C.

HOUSE OF LORDS [1960 |

premises, therefore the appellants were making beneficial use of
the premises. It is an undoubted advantage to the owner of an
empty house to put on some slates and keep it weathertight, but
the fact that he does so could not create rateable occupation
where none existed. I cannot myself accept the view that when
a person is repairing or altering something designed for a particular
purpose, he is by that action making use of it. The learned Lords
of Session were able to find support for their view in the decisions
of this House in Mersey Docks and Harbour Board Trustees v.
Cameron; Jones v. Mersey Docks and Harbour Board Trustees *
and Clyde Navigation Trustees v. Adamson.? With the greatest
respect, I cannot find any. When I consider the use made of its
premises by a docks and harbour board, I have no difficulty in
recognising it as a full as well as a beneficial occupation, although
the board is precluded from making a profit. In these cases the
dock estates were clearly being used according to their natures and
the decisions do not, in my view, help in the problem raised by
the instant case.

As, however, reliance has been placed on certain English cases
and everyone has treated the law of Scotland and the law of
England as being the same on this point, I want to say that I do
not think that they place any real difficulty in the way of the view
which I have formed. It will be noted that in Hackney Borough
Council v. Metropolitan Asylums Board? Lord Hewart indicated
that the carrying out of alterations without more might not
amount to rateable occupation. My difficulty is to perceive the
relevance of the accumulation of small facts on which the decision
that there was rateable occupation was reached. I do not think
that the cases where the ratio decidendi was that the premises
were in effect "' stand-by '' premises, such as Borwick v. South-
wark Corporation* and Associated Cinema Properties Ltd. v.
Hampstead Borough Council,> help in the decision of this case.
It follows that, in my view, the two cases in sheriff courts,
Commercial Bank of Scotland v. Glasgow Corporation ® and Co-
operative Permanent Building Society v. Pinkerton,' were not
rightly decided.

For all these reasons I would allow the appeal.

1 (1865) 11 H.L.C. 448. 5 [1944] K.B. 412; 60 T.L.R. 275;
2 (1865) 4 Macq.H.L. 931. [1944] 1 All E.R. 436.
3 (1924) 131 L.T. 186; 40 T.L.R. 6 1925 §.L.T.(Sh.Ct.) 142.

645. 7 (1958) June 18, Glasgow Sheriff

4 [1909] 1 K.B. 78. Court (unreported).

A.C. AND PRIVY COUNCIL.

Lorp Rem. My Lords, in this action the respondents sue for
£2,141 18s. 4d., being rates due for the year from Whitsunday,
1957, to Whitsunday, 1958, in respect of warehouse premises at
Ker Street, Greenock. The appellants acquired these premises in
March, 1957, with a view to using them as a bonded warehouse.
Before premises can be used for that purpose the requirements
of H.M. Customs and Excise as to security must be satisfied.
Preliminary approval of the premises was given in September,
1957, and alterations with a view to improving the security of the
premises were made by the appellants between March 3 and
June 16, 1958, whereupon provisional approval was given and the
appellants were free to use the premises for their intended
purpose.

The appellants' defence is that throughout the year in question
the premises "' were unlet, unoccupied and unfurnished within the
"meaning of section 243 of the Local Government (Scotland)
= Act, 1947. If that is established, then occupiers' rates are not
payable. Owners' rates having been abolished in 1956, the whole
sum now sued for represents occupiers' rates, and if the appel-
lants' contention is correct it is a complete defence to this action.

The premises were unlet and it is now admitted that they were
unfurnished throughout the year. The case turns on whether
they were '* unoccupied '' throughout the year. The facts are
not in dispute. The premises remained empty and the only
operations carried out in them by the appellants during the year
were some slight repairs to the roof in January and the alterations
begun on March 3 and not completed by Whitsunday. These
alterations comprised bricking up some windows and doors and
fitting iron bars to some other windows.

The respondents do not attach importance to the repairs, but
they maintain that by making these alterations the appellants
occupied the premises. What, then, is the meaning of "' un-
'occupied '' in the Act of 1947? There is no definition of the
word, and the only assistance to be got from the Act is in the
definition of '' occupier '' in section 379 (1) which includes " any
'* person in the actual occupation of land.'' Premises are therefore
unoccupied unless there is '' actual '' occupation by somebody.
But that does not throw much light on what is meant by
"occupation '': it only excludes occupation which is not actual
but only notional—if there can be such a thing as notional
occupation.

There is singularly little authority in Scotland on the meaning
of occupation and, apart from two sheriff court cases, there is

823

H. L. (8c.)
1960

ARBUCKLE
SmitH &
Co. Lrp.

0.

GREENOCK

CORPORATION.

824

H. L. -(8ce.)
1960

ARBUCKLE
SmiTra &
Co. Lrp.
0.
GREENOCK
CORPORATION.

Lord Reid.

HOUSE OF LORDS [1960 |

none in point in this case. In England there is a wealth of
authority, not always consistent, but again, with one possible
exception, there is none exactly in point here. I therefore think
it proper to begin' by taking the word '' unoccupied'' as an
ordinary word of the English language and considering its possible
meanings. It could, I suppose, mean that no one ever set foot
in the premises during the relevant period, but I reject that
meaning at once, both because it has never even been suggested
so far as I know in any authority or textbook, and because, very
properly, it was not argued in this case. So if the owner can
himself enter or send in others without thereby '' occupying "' the
premises, the criterion of occupation must be either how fre-
quently he or his representatives go in or what they do when they
are here. No one has contended that entry for inspection or
cleaning or ordinary maintenance such as heating in cold weather
or carrying out ordinary repairs to make the premises wind- and
water-tight constitutes occupation, and it appears to me that
occupation must involve something more than that. But if that
be so, I have difficulty in seeing on what reasonable principle
the making of the alterations in this case can be held to constitute
occupation. It might easily be necessary to do work not dissimilar
in character and extent from that done here to make good doors
and windows broken by natural or human agency. And, more-
over, where fairly extensive repairs are necessary the old position
is not always exactly restored: the opportunity is taken to carry
them out in such a way as to make improvements. It would
seem to me very odd if in such a case the criterion were whether
or not the work done has improved the premises or made them
more valuable to the owner.

But I can see a clear distinction between maintaining,
repairing or improving a fabric, on the one hand, and enjoying
the accommodation which it provides, on the other. And I think
that it would accord with the ordinary use of language to say that
the owner who in some way enjoys the accommodation is occupy-
ing the premises, but that the owner who merely maintains,
repairs or improves his premises is not thereby occupying them:
he is preparing for future occupation by himself, his tenant or his
disponee.

It appears to me that the difficulty in this case arises from a
misapplication of the requirement that, to be rateable, occupation
must be beneficial. The argument is that if you find the owner
making use of his property, and if that use is beneficial, then
there must be occupation: the kind of use does not matter. But

A.C. AND PRIVY COUNCIL.

a?

if the word "'use'' is used in that wide sense that argument
must, I think, be wrong or at least too widely stated. If bricking
up doors and windows is beneficial use, I do not see how it can
be said that replacing or repairing broken doors and windows is
not also beneficial use: the premises might be unusable until the
repairs had been done. The real question in this case, to my
mind, is not whether that kind of use was beneficial. It is
whether that kind of use, beneficial or not, can amount to
occupation.

A good deal was said in argument about the decisions of this
House in Mersey Docks and Harbour Board Trustees v. Cameron;
Jones v. Mersey Docks and Harbour Board Trustees ® and Clyde
Navigation Trustees v. Adamson.® There statutory boards had
made full use of their premises; they did all the things that a
normal occupier would do, and the quality of their use was not in
issue. Their case was that they did not have to pay rates because
they were precluded from making profit. Their occupation was
nevertheless held to be beneficial and rateable: it was beneficial
because it was of property capable of yielding a net annual value.
Since that time occupation of such property has been held rate-
able whether or not the occupier derives profit from it. But those
cases throw no light on the question what kind of use amounts
to occupation, and do not in the least support the fallacious
argument: occupation to be rateable must be beneficial; these
owners made beneficial use of their property; therefore they were
in rateable occupation.

I do not propose to examine subsequent English authorities.
They show that it may be difficult in particular cases to show
whether there was such enjoyment of the property as to amount
to occupation. But with one exception they do not involve the
present question. The exception is Hackney Borough Council v.
Metropolitan Asylums Board.'® I find it somewhat difficult to
determine the ratio decidendi, but it would seem to be that
although individual acts of maintenance and improvement do not
constitute occupation, an accumulation of such acts may do so.
I would doubt that. But I think it unnecessary to decide that
such an accumulation could never amount to occupation: it is
sufficient to say that that could only be so in exceptional circum-
stances, and that there is nothing exceptional in the present case.
It follows that, in my opinion, the two sheriff court cases—

8 11 H.L.C. 443. 10 131 L.T. 136.
9 4 Macq.H.L. 931.

A.C. 1960. 46

825

H. L. (Sc.)
1960

ARBUCKLE
SmitH &
Co. Lip.
v.
GREENOCK
CORPORATION.

Lord Reid.

826

,

H. L. (Sc.)
1960

ARBUCKLE
SmirH &
Co. Lrp.
v.
GREENOCK
CORPORATION.

HOUSE OF LORDS [1960 |

Commercial Bank of Scotland v. Glasgow Corporation ** and Co-
operative Permanent Building Society v. Pinkerton,' in Glasgow
Sheriff Court on June 18, 1958—were wrongly decided. For the
above reasons, I agree that this appeal should be allowed.

Lorp Rapcuirrs. My Lords, we have here to consider the
rateability of a warehouse owned by the appellants but not put to
any use by them during the relevant year except so far as entry
upon the premises by workmen, and the carrying out by them
of alterations to the fabric, may constitute '' use '' for this pur-
pose. The alterations were required in order to render the
warehouse properly secure for service as a bonded store in accord-
ance with Customs regulations. The specific items of work
mentioned were the bricking up of certain windows and doors.
I take it, therefore, that this is not a case of an existing building
being reduced for the time being to an incomplete state by far-
reaching structural alterations, but is a case of an existing
building being subjected to certain modifications of its structure
which, until completed, left it unfit for the intended business use.

It has been common ground that the appellants' claim not to
be rated in respect of the premises depends upon section 243 (1)
of the Local Government (Scotland) Act, 1947, the effect of which
is to provide exemption from rates in respect of any hereditament
which has been '' unlet, unoccupied and unfurnished through-
""out the whole of the year from Whitsunday to Whitsunday
'" corresponding to or as nearly as may be to the period for which
'the rate is levied.'' Certainly the warehouse was neither let
nor furnished during the relevant period; but was it unoccupied?
That rests upon the meaning which is to be attributed to the
words "' occupier '' or "' occupied '' or '' occupation '' where they
appear in the context of a rating enactment. In section 379 (1)
of the same Act '' occupier '' is defined as meaning the tenant or
sub-tenant or '' any person in the actual occupation of land.''
In my opinion, the word "' actual '' has no particular significance
here. The question is still, What is meant by '' occupation "' ?
And that, I think, can only be answered by considering what acts,
intentions or situations are requisite to constitute occupation for
the purposes of rating.

Both the learned Lord Ordinary and the learned judges of
the Second Division of the Court of Session treated the law of
Scotland and the law of England as being the same on this

11 1925 8.L.T.(Sh.Ct.) 142. 12 (1958) unreported.

A.C. AND PRIVY COUNCIL.

point, though I have no doubt that differences between the two
systems may lead to divergences in other respects. Consequently,
English decisions were referred to so far as they threw any light
upon the principles of law to be applied, though no English
decision has dealt with a case precisely similar to that which is
now before us. Having regard to the general link between the
conceptions of rateability ruling in the two countries, which was
confirmed by the successive decisions of this House in Mersey
Docks and Harbour Board Trustees v. Cameron; Jones v. Mersey
Docks and Harbour Board Trustees #* and Clyde Navigation Trus-
tees v. Adamson,* I should have been disposed in any event to
consider the case on the same basis: but I am confirmed in this
approach by my understanding that both of your Lordships who
are trained in Scottish law take the same view as the Second
Division upon this matter.

My Lords, I think that consideration of this case must begin
by recognising that an empty dwelling-house is not rateable, and
the owner of it is not regarded by the law as an occupier for rating
purposes. It is no doubt something of a curiosity that the owner
can by his own decision and for his own purposes withdraw from
rateability a hereditament which may be of substantial annual
value, and for which a tenant would readily give a profitable rent.
But so it is, even though the principle of it puzzled so great an
authority as Lord Blackburn (see Harter v. Salford Overseers 1°).
Whether the rule is '' in truth an exception from the general law
'of rating '' (per Lord Russell of Killowen in Townley Mill Co.
(1919) Ltd. v. Oldham Assessment Committee,*® it is nonetheless
an established part of that law. It accords with the principle
that, to be a rateable occupier, a person must enjoy some benefit
from the land: his occupation must be "' a thing of value.'' The
explanation has been said to be that the owner of an empty house
does not use it '' as a house '' within the meaning of the original
Poor Relief Act of 1601 (see per Lord Atkinson in Liverpool
Corporation v. Chorley Union Assessment Committee *"); and it
has been decided at various times that, while putting the owner's
furniture in the house does set up rateability, presumably because
some use of it as a house is being obtained, keeping a caretaker
in the house merely as a custodian does not constitute occupation
by the owner.

13 11 H.L.C. 448. 16 [1937] A.C. 419, 4383 (H.L.); 58
14 4 Macq.H.L. 931. T.L.R. 205; [1937] 1 All E.R. 11.
15 (1865) 6 B. & S. 591, 595. 17 [1913] A.C. 197, 211 (H.L.); 29

T.L.R. 246.

827

H. L. (8c.)
1960

ARBUCKLE
SMITH &
Co. Lrp.
v.
GREENOCK
CORPORATION.

Lord Radcliffe.

828

Hy i. (Ses)
1960

ARBUCKLE
SmirH &
Co. Lp.
v.
GREENOOK
CORPORATION.

Lord Radcliffe.

HOUSE OF LORDS [1960 |

It is evident, therefore, that there will not be occupation in
the context of rating unless some use is made of the hereditament
in the course of the relevant year. '' Use'' is not a word of
precise meaning, but in general it conveys the idea of enjoyment
derived by the user from the corpus of the object enjoyed. When
rating law turns its attention from dwelling-houses to industrial
or commercial premises the same conceptions are, in my opinion,
applicable to determine whether or not occupancy ceases or
begins, though they must be adapted to the particular circum-
stances of such premises, factory or warehouse, and the business
for the purpose of which they are created. Nevertheless, I think
that the words of Farwell L.J. in Rex v. Melladew '® provide a
satisfactory indication of the correct test: '' Rateable property has
'"many varieties; of some the normal use is by personal occupa-
"tion, e.g., a dwelling-house, of others by occupation by live or
"" dead stock, e.g., a linhay used as a shelter for cattle, or a barn;
'"'and the nature of the property and its mode of use must be
'" considered in each case. The test, in a case like the present, of
'business premises, appears to me to be, Has the person to be
'' rated such use of the tenement as the nature of the tenement and.
'' of the business connected with it renders it reasonable to infer
'"" was fairly within his contemplation in taking or retaining it? "'

Now, the appellants never used the warehouse in question
here as a warehouse during 1957-58. That, I think, is the
determining point. They did not buy it for any purpose of use
except as a bonded store, and that only when their adaptations
were complete and their licence permitted. This is not a case of
a warehouse being kept empty in one year by its owner after it
had been used as such by him in the previous year: nor is it
one of those cases of "' stand-by '' premises such as were the
subject of decision in Borwick v. Southwark Corporation ® and
Associated Cinema Properties Ltd. v. Hampstead Borough
Council.2° Nor, again, is it a case of premises bought for one
business purpose being, in fact, put to some other use. Here, if
nothing more had been done than was done up to the date when
the work of adaptation began, there would have been no question
of rateable occupation. The whole issue is whether the acts that
were done in carrying out these works amounted to such a use
of the hereditament as set up an occupation within the year.

In my opinion, they did not. Since language is not a precise

18 [1907] 1 K.B. 192, 203-204 19 [1909] 1 K.B. 78.
(C.A.); 23 T.L.R. 207. 20 [1944] K.B. 412.

A.C. AND PRIVY COUNCIL.

instrument, it is possible to say that there was use of the premises
in the circumstance that they were entered and subjected to the
work of adaptation. I do not think, however, that it is this sort
of user that is relevant when the court is considering whether a
warehouse was in rateable occupation. There was no enjoyment
of the value of the building as a warehouse. Indeed, I do not see
how adaptation work differs in its significance from current repair
or maintenance work carried out for the purpose of keeping the
building safe against wind and weather. If all that was done to
or in an empty building was that workmen went in to effect such
current repairs, I should have thought it rather extravagant to
suggest that it thereby became occupied in the rating sense.

Again, it is not, in my opinion, a correct, or, at any rate, a
conclusive, test to determine whether an occupation was beneficial
to inquire whether it suited the owner to have the work in ques-
tion done or whether such work was to his advantage. Except in
very special circumstances, it is to be assumed that it would be.
But you could say as much about maintenance work. It prevents
a loss of value to the owner just as adaptation or improvement
should lead to an increment of value. These considerations,
however, do not suffice to show that the occupation, assuming
the acts to have amounted to such, was itself '' a thing of value "'
during the year. Where there was no act of user of the warehouse
for the business purpose for which it existed this requirement was
not fulfilled.

It will appear from what I have said why I take the view that
the judgments of the Lord Ordinary and of the Second Division
of the Court of Session do not proceed on what is altogether the
correct principle. For the same reasons I do not think that the
two sheriff court cases to which we were referred, Commercial
Bank of Scotland v. Glasgow Corporation *! and Co-operative Per-
manent Building Society v. Pinkerton,?? were rightly decided.
The principle applied is entirely intelligible, but it is not, in my
opinion, in accord with the proper conception of occupation in
rating law.

The English decision which is closest to this case on its facts is
Hackney Borough Council v. Metropolitan Asylums Board.** It is,
however, impossible to refer to that case as an authority on any
matter of principle, owing to the extreme ambiguity of the judg-
ment of the Divisional Court delivered by Lord Hewart C.J. The

21 1925 §.L.T.(Sh.Ct.) 142. 23 131 L.T. 136.
22 (1958) unreported.

829

Hedi (Ses)
1960

ARBUCKLE
SmirH &
Co. Lip.
v:
GREENOCK
CORPORATION.

Lord Radcliffe.

830

H. L. (Sce.)
1960

ARBUCKLE
Suire &
Co. Juirp.
Ue
GREENOCK
CORPORATION.

Lord Radcliffe.

HOUSE OF LORDS [1960 |

most that can perhaps be inferred, for what it is worth, is that the
court seems to have inclined to the view that there would not be
occupation of an empty building during the period when nothing
more was done in it than execute works of adaptation and recon-
struction. What makes the decision unsatisfactory is that it is
impossible to see upon what principle the comparatively trivial
other acts upon the premises were held by the court to turn
what would or might not otherwise have been rateable occupation
into such an occupation. I cannot see what their significance was
and I should be surprised if anyone else can.

I would allow the appeal.
Lorp Conren. My Lords, I agree.

Lorp Keira or AvonHotm. My Lords, I agree and have little
further to add. I have some difficulty in following the approach
made by their Lordships of the Second Division to the question
in this case, and in particular, to understand why those of their
Lordships who gave opinions thought it necessary to consider
whether the alterations that were made were beneficial, or of
value, to the appellants. These premises could not be entered
in the valuation roll unless they were capable of beneficial occupa-
tion. The annual value which was put upon them in the roll was
the measure of the value of that occupation; in other words, it
was, under section 6 of the Lands Valuation (Scotland) Act, 1854,
the rent which a hypothetical tenant might be expected to give
for them in their actual state, taking one year with another. But
for assessment to rates there must be occupation. If, therefore,
there were rateable occupation of the premises, that annual value
supplied the basis of assessment for occupiers' rates. The assess-
ment in the present instance must have been on that footing. If
the appellants were in occupation they were in beneficial enjoy-
ment of the premises, and it does not really matter what use they
were making of the premises. In Clyde Navigation Trustees v.
Adamson ** the Clyde Navigation Trustees claimed that they were
not in rateable occupation so as to be liable to be assessed to poor
rates. This House and the Court of Session held that they were
liable, and in the Court of Session ?5 it was pointed out that it was
only the assessor under the Lands Valuation Acts who could fix
the value of that occupation. The question as I see it must

24 (1863) 1 M. 974; 4 Macq.H.L. 25 1M. 974, 986.
931.

A.C. AND. PRIVY: COUNCIL. 831

always be: Was there such occupancy as would amount to H. L. (Sc.)
enjoyment of the beneficial value of the subjects? 1960
The question in this case is whether the appellants were in ee
rateable occupation during any part of the rating year 1957-58. gmira &
If their Lordships of the Second Division entertained the view © L™.
that the appellants were in actual occupation, then there was no Greenock
need to go on and consider whether that occupation was beneficial. GOBFORSTION,
That had already been fixed by the value in the valuation roll.
But I think they may have meant that mere entry on the premises
to make the alterations in question—which they called use or

Lord Keith
of Avonholm.

possession of the premises—was not enough unless that use was
of value. Beneficial use, in other words, was necessary for actual
occupation. I do not know that I would cavil at that proposition
in this case, but I do not think that what was done here was
beneficial use of the premises. The alterations were the same
kind of alterations that might have been done in other circum-
stances by a tenant of premises, or by an owner-occupier in
undoubted occupation of premises, but these would not add to his
beneficial use or enjoyment, unless they were of such a character
as added to the value of the premises, in which case they would,
no doubt, be reflected in an increased valuation in the valuation
roll. In that case, his beneficial use would be in the enjoyment
of the increased value, not in the mere making of the alterations.
In the premises here in question there could be no possible benefit,
or enjoyment, from the alterations until the next rating year.

I can detect no difference between the law of Scotland and the
law of England in the principles that affect rateable occupation,
though the system by which rateable values are fixed may be
somewhat different. The statute defines occupier as including
any person '' in the actual occupation "' of land. It is difficult to
know what significance was intended by the word "' actual.'' The
definition in the Act of 1947 is not new. It will be found in the
Burgh Police (Scotland) Act, 1892. It may be intended to exclude
the nominal occupation which may attach to an owner-occupier
being entered, as I think is usual, in both the owner's and
occupier's column of the valuation roll, irrespective of whether he
is in actual occupation or not. But the point here is immaterial.
The word "' actual '' cannot certainly weaken the criteria to be
looked to in deciding whether there is rateable occupation. I
cannot add to the views expressed in the speeches already

832

H. L. (8e.)
1960

ARBUCKLE
SmitH &
Co. Lp.
O%
GREENOCK

CORPORATION.

H. L. (8c.)*

1960
Feb. 8, 9;

March 10.

HOUSE OF LORDS [1960]

delivered that nothing points here to actual occupation of the
premises in question.
I agree that the appeal should be allowed.

Appeal allowed.