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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> FIM Holdings v. Grampian Assessor [2003] ScotCS 326 (23 December 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/326.html Cite as: 2004 SCLR 725, [2003] ScotCS 326 |
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LANDS VALUATION APPEAL COURT, COURT OF SESSION |
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Lord Justice Clerk Lord Philip Lord Clarke
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XA128/03 OPINION OF THE LORD JUSTICE CLERK in STATED CASE in the APPEAL of FIM HOLDINGS LIMITED Appellant; against THE ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent: (Subjects: Fishing Huts, Montcoffer, River Deveron) _______ |
For appellant: Clarke; A. Gray Muir, WS
For respondent: Haddow QC; Bennett & Robertson
23 December 2003
Introduction
[1] This is an appeal against a decision of the Banff and Buchan Valuation Appeal Committee dated 2 April 2003 to refuse an appeal by the appellant against the following entry in the Valuation Roll.|
Reference No. |
Description and Situation |
Proprietor and Occupier |
Assessor's Value NAV |
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19 42598/11694 |
Fishing Huts Montcoffer River Deveron |
FIM Holdings Ltd per John A Christie Murdoch McMath & Mitchell |
£250 |
The findings in fact
[2] The subjects of appeal consist of two fishing huts, the Craig Hut and the Gorge Hut, on the north bank of the Deveron. They were constructed exclusively for use with the Montcoffer fishings. They are located on the Upper and Lower Beats respectively and are about half a mile apart. [3] The Craig Hut measures 4.88m x 3.05m. The Gorge Hut measures 4.65m x 2.9m and has a verandah measuring 4.54m x 1.1m. The length of each hut was determined by the length of the racks that hold fully extended salmon rods. The huts are almost wholly constructed of timber. They have no services of any kind. The total cost of construction was £4,000. [4] The huts are used only during the fishing season, that is to say from 11 February to 31 October. They have never been used for any other purpose and no other use would be permitted by the appellant. [5] The Montcoffer fishings are let to the Honourable Lord Morison. The subjects of lease include surrounding amenity land, the banks from which the fishing takes place, paths constructed for access to the fishings, access bridges, croys, walkways, the two huts, seats, rod-racks, and other such items. The corporeal items have no value except to persons exercising the right of fishing; but they represent a substantial capital investment. The walkway has involved extensive construction work. It makes the Gorge Pool accessible from the bank and adds considerably to the value of the fishings. [6] Sub-tenants of the Montcoffer fishings have the use of the whole subjects of the head lease and pay rent assessed on that basis. [7] It is more difficult to let a right of fishing if the lessor does not own the river bank and if there are no facilities on it. The provision of fishing huts is common for the convenience of those exercising the right of fishing. The standard and the quality of such huts vary widely. [8] The following findings of the Committee have particular relevance to the grounds of appeal."11. A reference to fishings is interpreted by those in the sport as a reference not only to the right to fish but also to use the associated amenities e.g. roads, paths, huts, etc., and a let of fishing comprises a let of and therefore the use or benefit of the whole undertaking including huts. When fishings were included in the valuation roll for rating purposes, this value was not divided between the incorporeal right to fish, including a right of access, and any corporeal features, such as fishing huts provided for the benefit of those exercising the right to fish. Following the exclusion of fishings from rating, but their continued inclusion in the valuation roll on request for the purposes of Fishery Board assessments, Assessors have apportioned rents between the value of the incorporeal right and the value attributable to corporeal amenities provided along with that right, such as fishing 'huts.'
12. The Committee accepted the net annual values placed on the huts as accurate.
13. Until the time of the assessment appealed against, general valuation practice in Scotland including that of Assessors valued 'fishings' as including such corporeal rights as are referred to above. Valuation of salmon and sea-trout fishing, whether of capital or of rentals, proceeds primarily on the basis of records of the number of fish of these species which have been caught, to which a value is assigned which varies according to the location and attractiveness of the river or beat. As is the case with provision of access facilities, the number of fish caught is partly determined by the facilities provided for catching them. Adjustment of these values is made in respect of the value to the fishing of other facilities provided, such as fishing huts, which are not directly reflected in the numbers of fish caught. From the date of the assessment under appeal the practice of valuation of fishing has remained the same, except that fishing huts and bothies have been excluded from valuations made by Assessors.
14. No rent can be obtained from a fishing hut by itself of the character of the subjects of appeal, whether from a person who has rented the fishing associated with that hut or from anyone else, there being no market for such a tenancy. The value of such a fishing hut is invariably and throughout Scotland included in the rent paid for the fishing."
The assessor's valuation
[9] According to the undisputed evidence of the depute assessor, the Scottish Assessors' Association (SAA) prepared a report for the 2000 Revaluation on the rental analysis of salmon fishing rights. In the absence of rental evidence for any individual huts let separately from the right to fish, it suggested "beacon values" for a number of specimen fishing huts. The valuations were derived from the estimated cost of replacement, adjusted for matters such as vehicular accessibility and the age and condition of the existing structure, to which was added the value of the land. The resulting figure was expressed as an annual figure by the application of the statutory decapitalisation rate of 5.5% (SAA Report, Appx A). By reference to these values the assessor assessed the Craig Hut and the Gorge Hut at net annual values of £100 and £150 respectively and combined them in a single entry at the aggregate sum. That sum represented about 65% of the decapitalised cost figure for the huts. The assessor's valuation of the right of fishing in this case did not include the values of the huts.The statutory framework
Legislation pre-1994
[10] It is the duty of the assessor to enter in the Valuation Roll all lands and heritages within his jurisdiction other than those that are excluded from the Roll by statute (Local Government (Scotland) Act 1975, s. 1). The definition of "lands and heritages" remains that in section 42 of the Lands Valuation (Scotland) Act 1854 (the 1854 Act). For the purposes of this appeal the relevant part of the definition is" ... the expression 'lands and heritages' shall extend to and include all lands, houses, shootings, and deer forests, fishings, ... and all buildings and pertinents thereof ... ".
The 1994 Act, s 151
[15] Section 151 of the 1994 Act provides inter alia that:"(1) On and after 1 April 1995 no shootings, deer forests, fishings or fish counters shall be entered in the valuation roll.
(2) Nothing in subsection (1) above shall affect any right of a district salmon fishery board (within the meaning of section 40(1) of the Salmon Act 1986) to require the assessor to value and enter any rights of salmon fishing in the valuation roll for the purposes of fishery assessments only ... "
The decision of the Committee
[16] The issue before the Committee was whether, by excluding fishings from the Roll, section 151(1) of the 1994 Act impliedly excluded heritable subjects such as the huts. The debate centred on the decision of this court in Ass for Tayside Joint Valuation Board v Joseph Johnston & Sons Ltd (2000 SLT 308; the Johnston case) in which it was held that "fishings" in section 151(1) meant the incorporeal right of fishing but not corporeal lands and heritages associated with it, such as the bothy in that case (at p. 310F-H). The Committee considered that it was bound by that decision and refused the appeal. It did so reluctantly. It agreed with the contention for the appellant that the separation of the huts from the rest of the fishings would lead to an absurd result, but concluded that that was "the unsatisfactory position that pertained" (Stated Case, p. 11).Submissions for the appellant
[17] Counsel for the appellant submitted that since the 1958 and 1988 Acts had restricted relief to the incorporeal "rights of salmon fishing," the expression "fishings" in section 151 of the 1994 Act must be given a wider meaning. Similarly, the reference in section 151(2) to "rights of salmon fishing" implied that "fishings" in section 151(1) had a wider connotation, namely that of a "fishery" with all its typical corporeal elements. The corporeal facilities made the incorporeal right effective and influenced the size of the catch. The expression "salmon fishery" in connection with entries in the roll made for the purposes of the district salmon fishery boards implied that "fishings" and "salmon fishery" were synonymous. [18] The Johnston case was distinguishable on its facts. It related to a substantial brick-built bothy which was occupied during the season by anglers and on a year-round basis by the respondent's ghillie in connection with his management of the fishings. It had a value that was agreed by the parties. In any event, that decision should not be followed because it had proceeded upon an unsound argument for the respondent, namely that the bothy was a pertinent of the incorporeal right (Johnston case, supra, at pp. 309L-310B). If the assessor was correct in relying on the Johnston case, he should have entered the other corporeal elements in the Roll, such as the car parks and the walkway. [19] The assessor had applied a defective method of valuation. If the huts were not associated with the fishings, their value would be nil. There would therefore be no reason to enter them in the Roll, let alone enter them as a unum quid. [20] Counsel for the appellants therefore moved the court to allow the appeal with the effect of deleting the entry from the roll; failing which, to substitute a nil value and to direct that there should be a separate entry for each hut.Submissions for the assessor
[21] Counsel for the assessor submitted that the Johnston decision was correct and that the new argument for the appellant did not affect its essential ratio. The huts had a value, however modest, and the Committee had accepted the assessor's valuations as accurate. The court could entertain only an appeal on value. It could not ordain the assessor to enter the huts separately.Conclusions
[22] Finding 11 (supra) implies that when fishings such as these are sold or let, the subjects of the transaction are generally the incorporeal right of salmon fishing together with the corporeal items, if any, that are linked to it. Where the seller or lessor owns the bank, the subjects will also comprehend such other rights and advantages as may be incidental to his title. I accept that in the parlance of the angling world "fishings" refers to the congeries of these elements (cf findings 11 and 14); but that wider meaning has no bearing on the central issue in this case. That is the same issue as was considered in the Johnston case, namely whether corporeal items are comprehended in the term "fishings" in the context of section 151(1). If they are not, then they are lands and heritages that should be entered in the Roll (Local Government (Scotland) Act 1975, s. 1). [23] The argument for the wider meaning proceeds on the view that the corporeal elements are necessary for the proper exercise of the incorporeal right. If that view is sound, the exemption from rating that is claimed in this case for two unserviced huts would apply equally in the case of a well-appointed lodge provided exclusively for the purpose of the fishings. [24] In my opinion the Johnston decision is not materially distinguishable on its facts. The size of the subjects of appeal and the materials used in their construction are irrelevant to the argument for the appellant. The difference in the extent of the use of the subjects is irrelevant too, since in both cases the use is confined to that of the fishings (cf p. 310D-E). I can see no significance in the failure of the parties to agree on value in this case. I conclude, therefore, that we should follow the Johnston decision unless the submission for the respondent in that case diverted the court from a true construction of section 151 and unless the new argument put forward in this case compels us to a different conclusion. [25] In my view, the submission for the appellant is unsound. It approaches the problem from the wrong direction. Section 151(1) falls to be interpreted in the context of those related provisions that preceded it. Only if the consideration of that context should leave the question in doubt should it be necessary to refer to the meaning of fishings in other contexts. [26] Since fishings are included in conjunction with shootings and deer forests in the definition of lands and heritages in the 1854 Act (supra), and since the right of salmon fishing is a separate heritable estate (Dee Salmon Fisheries Co Ltd v. Ass for Aberdeen, 1915 SC 790, Lord Salvesen at p. 795), I would interpret the word fishings to refer to the incorporeal right only. That interpretation, in my view, underlies the decisions in Dee Salmon Fisheries Co Ltd v. Ass for Aberdeen (supra; cf finding 1, at p. 791; Lord Johnston at p. 794), Ass for Aberdeenshire v. Cowdray (1911 SC 970) and Don District Board v. Burnett (1918 SC 37). [27] The exemption from rating given in the 1958 Act (supra) was obviously restricted to the incorporeal right and the same restriction is implicit in section 22A of the 1956 Act which the 1988 Act introduced (supra). [28] I do not accept the argument of counsel for the appellant that the use of the word "fishings" in the 1994 Act, rather than the expression "right of salmon fishing," implies a wider degree of exemption. On the contrary, in my view, the wording of section 151(1) merely returns, with the addition of the element of fish counters, to the statutory formulation of the expression "lands and heritages" in the 1854 Act and in my view removes from the Roll fishings in the sense of the 1854 Act definition. That view is entirely consistent with the exemption from rating, limited expressly to the incorporeal right, in the 1958 and 1988 Acts. [29] I also consider that the argument for the appellant based on the reference to a "salmon fishery" in the 1986 Act (supra) is unsound. The assessments made by district boards and related questions as to elections to boards have always been based on the values of the proprietors' rights that are shown in the valuation roll. When the 1958 Act in effect excluded rights of salmon fishing from the roll, it was necessary to provide that the values of such rights should be entered in the roll for the specific and limited purposes of the boards. The 1986 Act therefore provided that a qualified proprietor should be, for the purposes of that Act only, a proprietor of a salmon fishery entered in the valuation rolls (s. 11(1)). In my view, that meant that the subjects entering the roll for the purposes of that Act were the subjects that the 1958 Act had excluded. That view is confirmed by section 22A of the 1956 Act. [30] Section 151(2) of the 1996 Act recognises the restricted nature of the exclusion made in section 151(1) by providing that nothing in section 151(1) should affect any right of a board to require the assessor to value and enter in the roll "any rights of salmon fishing" for the limited purpose of fishery board assessments. [31] I conclude therefore that the interpretation of "fishings" in section 151(1) in the restricted sense of the incorporeal right is consistent with the statutory provisions that preceded it. For that reason, in my opinion, the Johnston decision is correct. [32] On this view, the wider meaning given to the word "fishings" in the context of sales and lets, is irrelevant. In any event, I consider that the argument for the appellant on that point too is unsound. The essence of that argument is that the corporeal elements are ancillary to the incorporeal right because they are essential to the proper enjoyment of it. I disagree. At common law, certain ancillary rights, for example a right of necessary access to the water, are inherent in the incorporeal right (Stair Memorial Encyclopaedia, vol. 18, paras. 327-328, Professor K S G Reid) and may properly be referred to as pertinents of it (Johnston, supra at p. 310F). Such rights do not include the right to erect a hut (cf Mackinnon v Ellis, (1878) 5 R 832). The Committee's findings imply that the right of fishing can be let, although less remuneratively, where there is no hut. Since the right of fishing and the use of a hut are not inextricable, I cannot see why a hut should be regarded for valuation purposes as a necessary part of the overall right. The fact that the rent paid for these fishings comprehends both does not affect the principle of the matter. [33] In my opinion, the corporeal elements are not essential to the exercise of the incorporeal right. They merely make the exercise of it more efficient and more enjoyable, and in consequence enhance the value of the right itself. [34] The fact that the assessor could have excluded other items from the value of the fishings in this case does not make his exclusion of the huts from the valuation erroneous. [35] In view of finding 12 (supra), I do not consider that the arguments of counsel for the appellant on valuation are open to him. In any event, the idea that the huts are valueless in isolation from the incorporeal right is fallacious. Merely because the incorporeal right is excluded from the Roll does not mean that other lands and heritages that are associated with it can have no value. On the contrary, these huts have a value arising from their utility to persons exercising the incorporeal right. That value is reflected in the rents that fishings with such huts can achieve. Although the assessor had no evidence of the letting of huts as separate subjects, he derived the values of these huts from the "beacon" values to which I have referred. The Committee must have accepted, as it was entitled to do, that that was a reasonable method of valuation in the circumstances. I can see no ground for our disturbing the assessor's values. [36] It is not open to this court to ordain the assessor to enter the huts separately (Armour, Valuation for Rating, 5th ed, paras 5-41, 5-42); but in any event since both huts exist for the purposes of the fishings, their aggregation into one entry in the roll is, in my view, both practical and reasonable. [37] For these reasons I propose that we should refuse the appeal. FIM Holdings v. Grampian Assessor [2003] ScotCS 326 (23 December 2003)>|
LANDS VALUATION APPEAL COURT, COURT OF SESSION |
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Lord Justice Clerk Lord Philip Lord Clarke
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XA128/03 OPINION OF LORD PHILIP in STATED CASE in the APPEAL of FIM HOLDINGS LIMITED Appellant; against THE ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent: (Subjects: Fishing Huts, Montcoffer, River Deveron) _______ |
For appellant: Clarke; A. Gray Muir, WS
For respondent: Haddow QC; Bennett & Robertson
23 December 2003
[38] I agree, for the reasons set out by your Lordship in the chair, that this appeal should be refused. [39] In particular, I agree that the word "fishings" in section 151(1) of the Local Government etc. (Scotland) Act 1994 should be interpreted as encompassing only the incorporeal right of fishing. The wording of section 151(1) reflects the wording of section 42 of the Lands Valuation (Scotland) Act 1854. The word "fishings" in that section must, in my view, be taken as a reference to the incorporeal right of salmon fishing, which, it is established, constitutes a separate heritable estate. The intervening legislative history, as your Lordship has indicated, serves to confirm that interpretation. [40] Moreover, if the appellants' argument were sound, the effect would be that much more elaborate constructions which might be used as dwelling houses or lodges in connection with fishings would be excluded from the roll. A consideration of the legislative history indicates to me that that was not the intention of Parliament.FIM Holdings v. Grampian Assessor [2003] ScotCS 326 (23 December 2003)
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LANDS VALUATION APPEAL COURT, COURT OF SESSION |
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Lord Justice Clerk Lord Philip Lord Clarke
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XA128/03 OPINION OF LORD CLARKE in STATED CASE in the APPEAL of FIM HOLDINGS LIMITED Appellant; against THE ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent: (Subjects: Fishing Huts, Montcoffer, River Deveron) _______ |
For appellant: Clarke; A. Gray Muir, WS
For respondent: Haddow QC; Bennett & Robertson
23 December 2003
[41] The fallacy in the appellants' approach arises from the assumption that because the huts are used exclusively in connection with the fishings they are to be deemed to be part of the fishings. For the reasons given by your Lordship in the chair, I am satisfied that the use of the word "fishings" in section 42 of the Lands Valuation (Scotland) Act 1854 is a reference to the incorporeal right of fishing which was and is, in our law, considered to be a separate heritable estate. As was decided in the case of Miller v. Blair (1825) 4 S. 214, the grant of such an incorporeal right confers upon the grantee certain accessory privileges, necessary to enable the right to be exercised. But the huts, in the present case, are not necessary for the exercise or enjoyment of the incorporeal right. They merely make its enjoyment more convenient. It is, in my judgment, not helpful when addressing the question raised in this case to have recourse to dictionary definitions or what might be thought to be embraced in the word "fishings" in common parlance. The question, in my judgment, is a legal one. Having regard to the statutory history, explained by your Lordship in the chair, and the background of the common law against which the statutory provisions find their place, I agree with your Lordship that the answer to the question raised by this appeal is that the meaning of the word "fishings" in section 151(1) of the 1994 Act is, as was the case in respect of its use in section 42 of the 1854 Act, restricted to the incorporeal right of fishing. I agree, therefore, that the case of Johnston, which is not materially distinguishable on its facts from the present case, was correctly decided. [42] For the foregoing reasons and the reasons given by your Lordship in the chair I would, also, refuse the appeal.
