Law Report: Case Summaries

The following notes of judgments were prepared by the reporters of the All England Law Reports.

Costs

R v Canterbury Crown Court, ex p Kent County Council; QBD (Div Ct) (Kennedy LJ, Macpherson J); 16 June 1993.

Where proceedings brought under s 16 of the Control of Pollution Act 1974 had been settled, so as to oust the Crown Court's jurisdiction to hear an appeal, there was also no jurisdiction to hear an appeal against a costs order subsequently fixed by the justices, since an award of costs was not a decision made 'in pursuance of' the 1974 Act with a right of appeal under s 85 of that Act, but was made under s 64 of the Magistrates' Courts Act 1980, and under that Act there was no right of appeal solely against a costs order.

Gavin Millar (D P Clephan, Kent County Council) for the applicant; Richard Drabble (Kingsley Smith & Co, Chatham) for the Crown Court (as an interested party).

Planning

Edmunds v Merton LBC; Tyndall v Merton LBC; QBD (Div Ct) (Kennedy LJ, Buckley J); 23 June 1993.

The words 'knowledge or consent' in s 224(5) of the Town and Country Planning Act 1990 had to be construed disjunctively.

Therefore a defendant who knew an advertisement was being displayed, in contravention of regs 5 and 26 of the Town and Country Planning (Control of Advertisement) Regulations 1989, could still avail himself of the defence under the section by proving that he had not consented to the display.

But the offence continued whilst the advertisement remained on display, so if it could be proved that the defendant, after receiving knowledge, had done nothing to remove it, there would be no difficulty in concluding that it had remained so displayed with his consent.

Michael Egan (Tosswill & Co) for Mr Edmunds; Mr Tyndall in person; M Finlay (Peter Blake, Merton LBC) for the respondent.

Tax

Pepper (Inspector of Taxes) v Daffurn; ChD (Jonathan Parker J); 17 June 1993.

A farmer aged over 60 who sold a covered cattle yard, which had been used only for calf rearing, for development, having run down his calf-rearing business over the previous two years, was not entitled to retirement relief from capital gains tax in respect of the gain realised on the sale under s 69 of the the Finance Act 1985 (now s 163 of the Taxation of Chargeable Gains Act 1992).

Relief under s 69(2)(b) did not apply since the asset had not been used in the business immediately before the sale, and relief under s 69(2)(a) only applied if the disposal constituted the disposal of part of a business, but the sale of the covered yard was not a disposal of part of the business since the cessation of calf rearing predated the sale.

Thus the sale could not have caused the disposal of the calf rearing part of the business.

Timothy Brennan (Inland Revenue Solicitor) for the Crown; Alan James (Cox & Hodgetts, Evesham) for the taxpayer.

Maidment (Inspector of Taxes) v Kibby; ChD (Sir Donald Nicholls V-C); 18 June 1993.

A fish and chip shop, bought as a going concern but integrated into the taxpayers' existing business, was not to be treated as the setting up of a new business and taxed under the commencement provisions for Sch D, case 1. Where there was a change in the persons carrying on a business, s 154(1) of the Income and Corporation Taxes Act 1970 (now s 113(1) of the 1988 Act) required the business to be so treated. As there was evidence to support the general commissioners' finding that the same business which the taxpayers had acquired had not been carried on in different hands but that their existing business had been expanded into another branch in new premises, the court would not interfere with the commissioners' determination, and the combined business would be taxed on the preceding year basis.

Timothy Brennan (Inland Revenue Solicitor) for the Crown; Giles Goodfellow (Francis & Co, Chepstow) for the taxpayer.

Lord (Inspector of Taxes) v Tustain; Lord v Chappel; ChD (Vinelott J); 18 May 1993.

To qualify for tax relief, under s 360 of the Income and Corporation Taxes Act 1988, for interest paid on a loan obtained to buy an interest in a close company, the company had to be a trading company which 'exists wholly or mainly for the purpose of carrying on a trade'.

A company satisfied that condition if it was incorporated or acquired for the purpose of obtaining a trade, even if, at the time when the relevant loan was made, the company had not itself started to trade.

Launcelot Henderson (Inland Revenue Solicitor) for the Crown; Stephen Allcock QC (Shoosmith & Harrison, Northampton) for Mr Tustain; Mr Chapple in person.

Inland Revenue Commissioners v Herd; House of Lords (Lord Mackay of Clashfern, Lord Chancellor, Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Slynn of Hadley); 17 June 1993.

The person paying to the taxpayer a sum, of which part was taxable under Sch E and part not, was not obliged to deduct tax under the Income Tax (Employments) Regulations 1973. Consequently, Sch E liability fell on the taxpayer who might be directly assessed.

W A Nimmo-Smith QC, Launcelot Henderson and R S Keen (Inland Revenue Solicitor) for the Crown; J Drummond-Young QC and Colin Tyre (Dyson Bell Martin, for Shepherd & Wedderburn WS, Edinburgh) for the taxpayer.