Ryan Industrial Fuels Ltd v Morgan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE SALMON |
| Judgment Date | 29 July 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0729-3 |
| Court | Court of Appeal |
| Date | 29 July 1965 |
| Docket Number | LVC/192/1962. |
[1965] EWCA Civ J0729-3
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Lands Tribunal dated 30th Nov. 1964.
Lord Justice Willmer
Lord Justice Davies and
Lord Justice Salmon
Mr. ANTHONY CRIPPS, Q. C, and Mr. ALAN de PIRO (instructed by Messrs Preston, Lane-Claypon & O'Kelly, Agents for Messrs Colborne, Coulman & Lawrence, Newport, Mon.) appeared on behalf of the Appellants.
Mr. MICHAEL J. ALBERY, Q. C., and Mr. WILLIAM J. GLOVER (instructed by The Solicitor of Inland Revenue) appeared on behalf of the Respondent.
This is an appeal by way of Case Stated from a decision of the Lands Tribunal given on the 30th November 1964, whereby they dismissed an appeal from a local valuation court of the 29tn October 1962, fixing the assessment for rating of a hereditament described as: "Coal Tip premises, Old Cwmbargoed Colliery, Cwmbargoed". On this appeal we have not been concerned with any question as to the quantum of the assessment. The questions which have boon debated before us are (1) whether the hereditament in question was in law rateable at all, and (2) whether, if so, the appellants were in rateable occupation of it.
Cwmbargoed Colliery was operated for a period of about one hundred years before it was finally abandoned in the year 1917. The tip in question, which covers an area of about thirty areas, consists of coal, carbonaceous shale, fireclay, sandstone, boiler ash, clinker and fired or red ash. Red ashy we were informed, is a substance resulting from the spontaneous combustion of carboniferous material in the tip, a process which may go on for many years. Until recently the tip in question had remained Unmolested, but during the year 1959, in pursuance of an agreementwith the owner of the land, the appellants began to exploit the tip by extracting and processing carboniferous materials which were found to have a commercial value.
The agreement, which was dated the 30th September 1959, contained the following provisions: "(1) The Vendor hereby agrees to sell and the Purchasers agree to purchase ALL AND SINGULAR the material which has been tipped upon the piece of land situate at Cwmbargoed in the County of Glamorgan edged red and hatched with black lines on the plan annexed hereto (hereinafter called 'the Tips') other than and except and reserved unto the Vendor and his successors in title such of the tips as are fired and rod ash with full right of working getting and carrying away the same Together with the rights hereinafter mentioned". By clause 2 the purchase price was fixed at £2,000.
The following further clauses are relevant to the question which has arisen. "(3) The Purchasers shall for a period of fifteen years from the first day of July 1959 have the solo and exclusive right to extract and take away from the Tips other than such of the Tips as are fired and red ash as aforesaid all material which may be found therein other than fired and rod ash material as aforesaid and if they shall deem it so necessary to clean such material on the said Tips.
"(4) The Purchasers shall for the above period of fifteen years have access to the Tips and as and when during such period they shall deem it necessary the right to place thereon and move their washeries machines and lorries in and out of the Tips.
"(5) The Purchasers may tip and dispose of on the site of the Tips all waste material extracted by them from the Tips which they do not carry away. (6) The Purchasers shall at the end of the before mentioned period of fifteen years leave the site of the Tips other than such of them as are fired and red ash as aforesaid properly levelled off to the reasonable satisfaction of the Vendor. (7) The Purchasers are to be allowed to take and use free of charge such red ash from the Tips as shall be required by them for the purpose of making roads round the site".
No evidence was called before the Lands Tribunal, but the case proceeded on the basis of an agreed Statement of Pacts, which was in the following terms: "(1) The purpose of the occupation is the removal of material from the Tip with a view to the recovery and disposal of saleable coal and filling material for carpeting purposes at stocking grounds. (2) The first commercial removals from the Tip took place in July 1959 by Ryan Plant (Glamorgan) Limited, formerly the appellants.
"(3)Caterpillar tracked Dragline and Pace Shovel excavators moving from place to place within the Tip were employed to remove selected coal-bearing material from various levels in the Tip and to fill it direct into lorries or dumpers. Materials containing too low a coal content to merit removal from the hereditament for treatment were discarded or removed and retipped whore necessary. Bulldozers were used to assist these operations. The lorries or dumpers then carried the selected material to the appellant company's plant at the South Tunnel, Fochriw hereditament, where it was screened and washed-to recover saleable products suitable for firing boilers at Central Electricity Generating Stations and for mixing and blending with other fuels
"(4) Unfired or unburnt shales were similarly but separately removed from the Tip to central mixing and blending depots belonging to the appellant company and used there as a carpeting material for their stocking grounds. (5) Fired or red ash was also removed and this was use dib making and repairing temporary tracks to enable the lorries to operate in and to the Tip. No red ash was exported from the site.
"(6) During the year ended the 31st December 1961, about 25,000 tons of washed coal were recovered and sold from materials taken from the tip, and 15,300 tons of unfired shale were taken for carpeting purposes". There was no evidence to show that the otmer of the land or any other person exercised any rights of occupation in relation to the tip.
The valuation court had decided that "the tip constituted land of which the appellants were in rateable occupation. The appellants appealed to the Lands Tribunal on the grounds (1) that the tip was a chattel, and as such was not rateable in law, and (2) that the appellants were not in exclusive occupation. The respondent did not seek before the Lands Tribunal to support the decision of the valuation court on the basis that the tip constituted land. On the contrary, it was made clear in correspondence before the hearing that no such contention would be put forward. It was the respondent's case, as pleaded in his Reply, that for the purposes of the law of rating it was completely irrelevant whether the material in the tip was for purposes of any other branch of the law part of the land or chattels. The case before the Lands tribunal proceeded on this basis, and no evidence was called for the respondent to show that the tip constituted land; for the same reason the appellants did not find it necessary to call evidence to the contrary. We facts were found by the Lands Tribunal which were directed to this question.
In these circumstances I accept the submission of the appellants (which has not been disputed before us on behalf of the respondent) that it is not open to this court to dismiss this appeal on the ground that the tip constituted land of which the appellants were in rateable occupation. On the footing that the material in the tip constituted chattels, both parties referred to, and relied on, the decision of the House of Lords in London County Council v. Wilkins, (1957) Appeal Cases, page 363.
It had been accepted on behalf of the appellants at the tearing before the Lands Tribunal that the correct approach to the question was as set out in paragraph 4 (a), (b) and (c) of the respondent's Reply as follows: "(a) that it is for the purposes of the law of rating completely irrelevant whether the minerals, which the appellants were at all material times winning from the tips included in the appeal hereditament, were for the purposes of any other branch of the law 'part of the land' or 'chattels'; lb) that for the purposes of the law of rating something placed on the land will itself be, or be part of, a rateable hereditament provided only that it passes all the tests of rateable occupation; (c) that the said tests are: (1) that there must be actual occupation of the thing in question, (ii) exclusive for the particular purpose of the occupier, (iii) of some value or benefit to the occupier, and (iv) not for too transient a period".
The members of the Lands Tribunal appear to have directed themselves by reference to the five matters referred to by Lord Tucker in London County Council v. Wilkins at page 383 of the report. They concluded (1) "that the "spoil heaps which constituted the tip in question could be rateable hereditaments; (2) that the appellants were in fact in occupation; (3) that their occupation was exclusive for the purposes for which they were in fact working the spoil heaps: (4) that the appellants' occupation was of value to them, and (5) that it was not of too transient a character.
On this appeal the appellants connoted that if the tip constituted a rateable hereditament, and if they were in exclusive occupation thereof, such occupation was of some value to them, and was not for too transient a period. The main argument on behalf of the appellants was directed to showing that this tip was not a rateable hereditament at all. That which is not realty, it wascontended, is not rateable unless it comes within one or other of certain well defined categories of exception. Thus, for instance, certain incorporeal rights, such as rights of sporting, are rateable only because of special statutory provision. It was conceded, however, that chattels may become rateable if affixed to the land, as were the moorings in Cory v....
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