Shell-Mex and BP Ltd v Clayton
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 22 July 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0722-1 |
| Court | Court of Appeal |
| Date | 22 July 1955 |
[1955] EWCA Civ J0722-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Sir Raymond Evershed),
Lord Justice Jenkins and
Lord Justice Parker
Mr MICHAEL E. ROWE, Q. C., and Mr G. D. SQUIBB (instructed by Messrs Sydney Morse & Co.) appeard on behalf of the Appellants.
Mr MAURICE LYELL, Q. C., and Mr PATRICK BROWNE (instructed by Solicitor of Inland Revenue) appeared on behalf of the Respondent, the Valuation Officer.
Mr H. EDMUND DAVIES, Q. C., and Mr E. P. WALLIS-JONES (instructed by Messrs Smith & Hudson, Agents for Messrs Main prize, Rignall & Whitworth, Hull) appeared on behalf of the Respondents, Holderness Rural District Council.
(THE MASTER OF THE ROLLS: The Judgment which I am about to read, and which has been prepared by Lord Justice Jenkins, is the Judgment of the Court.
The Appellant Company contends that the hereditament described in the Case Stated by the Lands Tribunal, and consisting of its terminal depot at Salt End adjacent to the Port of Hull, ought for rating purposes to be treated as a "freight transport hereditament" under Section 5(l)(c) of the Rating and Valuation (Apportionment) Act, 1928, which includes in the category of "freight transport hereditaments": "(c) a hereditament occupied and used wholly or partly for dock purposes as part of a dock undertaking being an undertaking whereof a substantial proportion of the volume of business is concerned with the shipping and unshipping of merchandise not belonging to or intended for the use of the undertakers".
As appears from the above definition of the relevant type of freight transport hereditament, the Appellant Company in order to make its contention good must show that the hereditament in question satisfies all the following conditions, namely: (l) that it is occupied and used wholly or partly for dock purposes; (2) that it is so occupied and used as part of a dock undertaking; and (3) that such dock undertaking is one whereof a substantial proportion of the volume of business is concerned with the shipping and unshipping of merchandise not belonging to or intended for the use of the undertakers.
Section 5(2)(c) of the Act defines "Dock purposes" as meaning (so far as material for the present purpose) "all purposes connected with the shipping or unshipping at a dock of… merchandise". Section 5(3) of the Act adds the following further definitions: "'Dock' includes any harbour, wharf, pier, jetty or other works in or at which vessels can ship or unship merchandise or passengers not being a pier orjetty primarily used for recreation. 'Dock undertaking' means an undertaking carried on by a dock authority, but also includes any other undertaking comprising as part thereof a dock in so far only as its business is carried on at and in connection with that dock. 'Dock authority' means any person or body of persons, whether incorporated or not, who are authorised to construct or are owners or lessees of any dock authorised by or under any Act".
We will treat as incorporated in this Judgment the facts set out in the Case Stated and make special reference only to the essential points upon which the arguments for and against the Appellant Company's claim have turned.
As to the first of the three conditions above stated, is the hereditament occupied and used wholly or in part for dock purposes, that is to say, for purposes connected with the shipping or unshipping of merchandise at a dock? On this question, the essential matters of fact are theses The Appellant Company uses the hereditament as a terminal depot in its business of importing, distributing and marketing oil. Incoming tankers unship their cargoes of merchandise in the shape of oil at two jetties belonging to the Transport Commission which are undoubtedly a dock within the meaning of Section 5(3). The unshipping is effected by pumping the oil from the tankers through a system of pipes running out along the jetties and leading to the storage tanks on the hereditament, and the Appellant Company takes delivery of it at the ship's rail. The total tank age capacity at the hereditament is 211,781 tons and the tanks habitually contain stocks of oil substantially in excess of day-to-day requirements, the stocks on hand (according to typical figures given in the Case) being as a rule of the order of 100,000 to 150,000 tons and sufficient to cover, say, one month's deliveries in the event of receipts being suspended. The ratio of receipts to distribution varies from month tomonth, but it would seem that over a period they more or less balance, so that the surplus of, say, 100,000 to 150,000 tons we have mentioned is in the nature of a reserve. Prom the stocks of oil in the tanks the Appellant Company distributes supplies by land and water transport to its own internal depots and also to various categories of customers and consumers. It also effects sales of oil to customers direct from the hereditament and consumes a relatively insignificant quantity in its own operations. The media of distribution used by the Appellant Company include a barge berth owned and occupied by it at Hedin Haven some 300 yards to the south- east of the southernmost portion of the hereditament, and connected with pumphouses and tanks on the hereditament by means of pipes owned and occupied exclusively by the Appellant Company. The barge berth (at which oil is shipped into barges) is undoubtedly a dock within the meaning of Section 5(3)o Approximately one-quarter of the oil brought into the hereditament from the incoming tankers is dutiable, and technically the whole hereditament, including the pipes and storage tanks upon it, is a bonded warehouse in which, pending distribution, the dutiable oil can lie without payment of duty. The Appellant Company must have available on the hereditament a tankage capacity in excess of the day-to-day requirements of distribution, because it must correlate the intake of oil to the movements of tankers, and also, but to a much smaller degree, for the purpose of meeting unexpected demands. The provisions of the leases under which the hereditament is held by the Appellant Company clearly show them to have been granted for the very purpose of enabling the lessees to receive into the hereditament oil unshipped at the jetties.
On these facts, Mr Rowe for the Appellant Company argues that the hereditament is, within the meaning of Section 5 of the Act, occupied and used, if not wholly, at all events partly, for dock purposes, that is to say, purposes connectedwith the unshipping of merchandise (that is, oil) at a dock (that is, the Transport Commission's jetties). He observes with force that the unshipping operations here in question consist of pumping the oil from the tankers into the storage tanks through the pipes leading to them from the jetties, and that oil in bulk cannot be unshipped merely by putting it over the ship's rail on to a jetty, but must be transferred from the ship's tanks into suitable receptacles on shore. He bases himself on the simple proposition that pipes through which, and tanks into which, cargoes of oil in bulk are discharged from ships cannot reasonably be said not to be used for purposes connected with the unshipping of that oil. He says that it is only incumbent on the Appellant Company in the first instance to show that the hereditament is used partly, that is, to some extent, for dock purposes. Once that is shown, the Appellant Company's claim that the hereditament is a "freight transport hereditatment" is made good so far as the first of the three conditions (i.e. occupation and use wholly or partly for dock purposes) is concerned, and, provided the other two conditions are satisfied, it will remain to consider whether there should be any, aud, if so, what, apportionment under Section 6 of the Act. It will be convenient at this point to refer to the terms of that Section, So far as material for the immediate purpose, it provides as Follows: "6(1) In every valuation list every freight-transport hereditament which is occupied and used wholly for transport purposes shall be shown as being so occupied and used, and as respects every such hereditament occupied and used partly for transport purposes the net annual value thereof shall be shown in the prescribed manner as being apportioned between the occupation and user of the hereditament for transport purposes and the occupation and user thereof for other purposes. (2) where a freight-transport hereditament is not occupied and usedfor more than one transport purpose the nature of that purpose shall be shown… (3) For the purpose of determining in what proportions a freight-transport hereditament is occupied and used for transport purposes and for other purposes, respectively, the hereditament shall be deemed to be occupied and used for transport purposes, except in so far as it is occupied and used for the purposes of a dwelling-house, hotel, or place of public refreshment: Provided that… (b) in the case of a hereditament… occupied and used for dock purposes as part of a doci-: undertaking no part of the hereditament, being a building, yard, or other place primarily occupied and used for warehousing merchandise not in the course of being transported, shall be deemed to be occupied and used for transport purposes".
Mr Rowe by no means admits that the hereditament or any part thereof is primarily occupied and used for the purpose of warehousing merchandise not in course of being transported" within the meaning of Section 6(3)(b), and argues that the status of a bonded warehouse technically possessed by the hereditament with respect to the dutiable one-fourth or thereabouts of the oil brought into it is a minor and incidental matter which should not affect the result. But,...
To continue reading
Request your trial
-
B.P. Oil Grangemouth Refinery Ltd v Assessor for Lothian Region
...was being shipped abroad, it could not be regarded as being intended for the use of the undertakers. Shell-Mex & B.P. v. ClaytonUNK [1955] 3 All E.R. 102distinguished. (6) That it was not necessary from the reference in sec. 5 (2) (c) of the 1928 Act to "all purposes connected with shipping......
-
Chandos Pte Ltd v Comptroller of Income Tax
...and one of the meanings of the word is to employ to any purpose (see the judgment of Evershed MR in Shell-Mex and BP Ltd v Clayton [1955] 3 All ER 102). This then is another reason why this appeal must fail.In the result, I dismiss this appeal with costs. There will be the usual consequenti......
-
Aberdeen Harbour Board v Assessor for Aberdeen
...and Valuation (Apportionment) Act, 1928 (18 and 19 Geo. V, cap. 44), section 5 (2) (c). 5 Shell-Mex and B.P. Ltd. v. ClaytonWLRWLR, [1955] 1 W.L.R. 982; [1956] 1 W.L.R. 1198; Holloway Bros. (London) Ltd. v. Assessor for EdinburghSC, 1948 S.C. 300; Clyde Navigation Trustees v. Inland Revenue......
- West Dorset District Council v Auton (Vo) and Post Office