OPINION

Selecta UK Limited v Assessor for Lothian Valuation Joint Board

Introduction and Summary

[1] This appeal was referred by the local Valuation Appeal Committee to the Tribunal under Section 1(3A) of the Lands Tribunal Act 1949. It relates to an entry in the Valuation Roll in respect of a number of vending machine stances or sites within a main line railway station with the vending machine company entered as occupiers. The company appeals against the entry on the grounds that the stances are not separate lands and heritages and in any event any right of occupation by the company is subordinate to the right of occupation of the station operators. There is no suggestion that the vending machines themselves are rateable.

[2] The Tribunal has decided that the appeal should be upheld. In the Tribunal’s opinion, none of these stances is either separately occupied or, in any event, occupied by the appellants. The entry should be deleted from the Valuation Roll with effect from 16 May 2006.

Procedure

[3] The respondent Assessor entered ‘Stances, Waverley Bridge, Edinburgh’ in the Valuation Roll with effect from 16 May 2006. This was a single cumulo entry, for administrative convenience, in relation to around 15 separate stances within Waverley Station, Edinburgh. Network Rail Infrastructure Limited (“Network Rail”) were shown as proprietors and the appellants were shown as occupiers. The Net Annual Value was shown as £10,000. The appellants appealed against the entry and applied for a reference to the Tribunal under Regulations 5(1)(c)and (d) of The Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995. This application was not opposed and was granted by the Committee. There had been small changes in the number of stances, but there was at the hearing before the Tribunal no issue as to this or as to the values of the stances if correctly entered.

[4] The appeal was heard at an oral hearing on 22 and 23 July 2009. The appellants were represented by Mr McIver, Advocate, instructed by Messrs Culverwell, Property Consultants, Edinburgh. Andrew Noble, General Manager, Public Vending, and Ian Graham, Regional Manager, each of the appellant company, gave oral evidence. The Assessor was represented by Mr Clarke, QC, instructed by the Assessor for Lothian Region Valuation Joint Board. John Fowler, FRICS, Depute Assessor, gave evidence. Documentary productions were also lodged.

Authorities referred to:-

Dante v Assessor for Ayr 1922 SC 109
Westminster City Council v Southern Railway Co Ltd 1936 AC 511
David Allen & Sons Billposting Limited v Assessor for Clydebank 1936 SC 318
Glasgow Corporation v Assessor of Public Undertakings 1936 SC 754
Austin Reed Limited v Assessor for Glasgow (Case 1) 1937 SC 317 (“Austin Reed”)
LNER v Assessor of Public Undertakings 1937 SC 792
Assessor for Renfrewshire v Old Consort Company Limited 1960 SC 226
British Transport Commission v Assessor for Inverness-shire 1962 SLT (Notes) 68
James Mackie (Paisley) Limited v Assessor for Renfrewshire 1964 SC 373
Assessor for Lanarkshire v Clydesdale Bank plc 2005 SLT 167 (“Clydesdale Bank”)
Non-Domestic Rating (Valuation of Utilities) (Scotland) Order 2005 (SSI 2005/127) (“the Utilities Order”)
Armour on Valuation for Rating (5th Ed’n), particularly at 14-03 to 14-06, 14-15, 14-27 17-02B to 17-02M

The Facts

[5] There was no dispute as to the basic facts, which the Tribunal found to be as follows.

[6] The Appellants. The appellants are a UK and Ireland vending operator. They are a subsidiary of Compass PLC. Compass had also acquired two companies in the business of railway refreshments, Travellers Fare Limited and Select Service Partner UK Rail. The businesses of vending machine operations within railway stations, as well as at other public locations, were consolidated in the hands of the appellants, who operate a substantial number of machines at such locations.

[7] Arrangements at Waverley Station. This mainline railway station had not previously had vending machine services. Between November 2003 and May 2005, the appellants approached the management of Network Rail as the station operators and discussed this opportunity with them. Proposals were developed. Locations were agreed in March 2005. 17 machines were installed in June 2005. Between June 2006 and February 2009 the number of machines fluctuated between 13 and 15.

[8] Although the appellants have machines installed in several UK stations, there is as yet no written agreement in place between the appellants and Network Rail. It is not unusual in this line of business to operate without any formal contract. The appellants sent a draft licence agreement to Network Rail for consideration in 2006. Discussions about a detailed formal agreement have been intermittent. In 2008 Network Rail provided a draft 10 year agreement from 1 April 2005 (“the draft agreement”). An appendix to this draft lists Waverley along with 16 other stations but gives no detail of numbers or locations of machines. The arrangements between the appellants and Network Rail appear consistent with the draft agreement. Network Rail retain the right to possession and control of the sites. The draft agreement would allow Network Rail to enter into agreement with other vending machine operators and also to require the appellants to remove all of their machines on 3 days’ notice without any form of payment or compensation.

[9] The Draft Agreement. Clause 1 of the draft agreement (“Grant of Licence”) provides:-

“In consideration of the Licence Fee and the Licensee’s covenants Network Rail grants to the Licensee, subject to the terms and conditions of the Licence, the permission set out in clause 3 of the Standard Conditions for the Licence Period (or until this Licence or any part of it is ended sooner).” The Licence Fee consists of various payments by the Licensee based on turnover percentages. The Licence Period is from 1 April 2005 to 31 March 2015.

[10] The Standard Conditions include the following provisions:-

3.1 defines the permission granted to the Licensee as “the non-exclusive licence to affix and maintain the Machines listed in Parts I and II of the Appendix on Railway Property, as follows.” Part I was to include those present at the start date; Part II, those added subsequently.

3.2.1 provides for “full access on foot to each Machine during such times as the Railway Property in which it is located is open to the public, by such route as Network Rail reasonably directs” to the Licensee’s personnel in order to carry out supervision, repairs and servicing, subject to payment of the appropriate platform charge where a machine is located on the railway side of a ticket barrier.

3.2.2 authorises the Licensee, as an alternative to repairing a machine on site, to remove it and replace it with a substantially similar machine.

3.3.1 provides: “The Licensee may with the prior written approval of Network Rail place Machines on Railway Property in addition to those specified in Part I of the Appendix. Network Rail’s approval shall be in its absolute discretion as to the location of any such machine and as to whether it may be installed.”

4 includes detailed provisions for calculation and payment by the Licensee of the Licence Fee, based on a reviewable fixed annual amount plus percentages of turnover, and certain costs such as for the supply of electricity.

5.1 (“Replacement of Any Machines”) provides: “The Licensee shall:-

5.1.1 change any Machine to a unit which complies with Section 12 of the Fire Precautions Act 1971 or other relevant legislation (i.e. one which meets the increased fire safety specification) at any time at Network Rail’s request;

5.1.2 invest at a high level in order to ensure that the Machines and any ancillary equipment are maintained to the highest standards;

5.1.3 ensure that the Machines and ancillary equipment comply with design specifications (including pattern, type, size and colour) as required by Network Rail.”

5.2 (“Maintenance of Machines”) provides: “The Licensee shall at its own cost and risk maintain (and where necessary renew and replace) the Machines in good and substantial repair and condition and efficient working order, keep them clean and neatly painted in a colour approved by Network Rail (or otherwise treated so as to achieve a neat appearance) free of stickers and graffiti and to the satisfaction of Network Rail in all respects.

The Licensee shall forthwith (so far as it is liable to do so) carry out all repairs and works required to be done by written notice given by Network Rail. If such notice is not complied with within one month, Network Rail may (but is not obliged to) carry out the work referred to in such notice and the expense of doing so shall be repaid by the Licensee to Network Rail on demand.”

5.3 and 5.4 require the Licensee to indemnify Network Rail against claims, etc arising from the presence or use of the machines and to maintain insurance against liabilities to Network Rail and third parties “in respect of the Machines” and to insure the machines.

5.5 provides: “Network Rail has no obligation to maintain and repair the Railway Property.”

5.7 requires the Licensee and its employees to comply with Network Rail’s regulations, etc., in regard to the management and use of the Railway Property.

5.10 provides: “The Licensee shall not display on Machines announcements or advertisements of any kind except those relating to products sold within the Machine and those mentioned in Clause 5.11.” (5.11 requires the display of notices in relation to complaints and as to use of the machines.)

5.12 prohibits assignation of the licence.

5.13 (“Outgoings”) provides: “The Licensee shall pay all rates, taxes, charges, duties, impositions and other assessments and outgoings, now or later imposed, charged, assessed upon or payable in respect of the Machines …. Any payment made or to be made in lieu of rates under the Local Government Finance Act 1988 in respect of the Machines is treated as a payment of rates.”

5.16 (“Permitted Machines”) provides: “No Machines may be installed in Railway Property unless Network Rail shall have first approved the type of Machine, the service to be provided by the Machine and such other details as Network Rail’s Surveyor considers appropriate. Machines may not be altered . . .”.

5.17 (“Availability”) requires the Licensee to keep the machines available for use at all times (subject to exceptions such as repair periods and closures of the station) and sufficiently stocked and filled.

5.23 (“Installation of Machines”) provides: “Machines shall be installed and secured in such manner and in such positions as may be approved from time to time by Network Rail.”

5.27 (“Type of Goods and Products Sold”) provides: “The type of goods and/or products sold by a Machine shall not be changed without the prior consent of Network Rail’s Surveyor.”

6.1 (“Machines out of Repair”) authorizes Network Rail to order removal of any machine which is in their opinion out of repair, on notice, and itself to remove such machine unless repaired or removed by the Licensee.

6.2.1 (“Removal and Repositioning of Machines”) provides: “If Network Rail shall at any time in its absolute discretion require the removal or repositioning of any of the Machines, the Licensee shall at its own cost forthwith upon receipt of three days’ notice in writing (or sooner if requisite) remove any such Machines either absolutely from the Railway Property or to such alternative site as Network Rail may require ….”.

6.3 (“Removal of Machines”) provides: “Upon this Licence coming to an end from any cause, whether in whole or in relation to individual Machines, the Licensee shall remove all relevant Machines and (if requested by Network Rail) any fittings or works associated with them from the Railway Property and shall make good all damage to any Railway Property ….”.

7.3 (“Closure of Railway Premises”) authorizes Network Rail to close Railway Property in a variety of situations, including in connection with “the requirement of its business”, and provides that it is not obliged to keep any station open for business.

8 (“Network Rail’s Rights and Liabilities”) provides: “It is agreed that:

8.1 Network Rail may carry out any work and erect any structure whether permanent or otherwise (including scaffolding) over, under or adjoining Machines;

8.2 Network Rail may place, maintain and use over, under or adjoining Machines or any of them wires, meters, equipment, works, service media and other apparatus for the use of Network Rail and its licensees, tenants and others;

8.3 the Licensee may not interfere with Network Rail’s right to possession and control of the sites of any of the Machines.”

11 (“No Tenancy Created”) provides: “This Licence shall operate as a licence only and not as a lease or tenancy.”

[11] Installation of Machines. The appellants and Network Rail’s representative agree the location of any vending machine. Network Rail’s operational requirements and the convenience and safety of the public as travellers has maximum priority. There is no physical definition or delineation of the site of a machine prior to installation. Each site is part of a larger area of concourse or platform. None of the machines is fixed to the ground and no damage is done to the surface of the platform or concourse. They are connected to Network Rail’s electricity supply by a fixed connection. They do not have any water supply. In three cases at Waverley where the existing surface is sufficiently level and smooth the machines (or machines and cabinets) are placed directly onto the surface. In the remaining cases, where the surface is not sufficiently level, a concrete plinth to the exact dimension of the outer case of the machine is laid on a plastic membrane which is not stuck to the ground. Bolts are set in the concrete but do not penetrate the surface of the platform or concourse. Quick setting concrete is used and the entire installation is completed in about 4 hours. Occasionally, a section of metal barrier requires to be removed to allow the machine to be placed partly on both sides. The section of barrier is retained and re-installed on any removal of the machine. With their housing cabinets the machines are up to about 200 cms high, 155 cms wide and 115 cms deep and weigh up to around 500 kilograms. Moving unladen machines requires two men.

[12] Operation of Machines. The appellants operate the machines, filling and maintaining them and collecting cash. Network Rail’s approval is required for the type of goods sold and any alteration of that.

[13] Removal of Machines. The machines with their cabinet frames can be removed. If there is a concrete plinth, that and its plastic membrane are broken up. That operation usually takes less than 4 hours. At its conclusion, there is no damage to the surface and no remaining evidence of the machine’s presence or delineation of the site. Both the installation and the removal procedures are covered by the appellants’ working procedures which have been agreed with Network Rail.

[14] Most machines at Waverley have stayed in place since installation in 2005. The most usual reason for Network Rail requiring the removal of machines is some form of modernization or repair works in the station. The notice may be as short as the 3 days’ requirement in the draft agreement. Network Rail have required the removal of machines at Waverley on about 5 occasions: 5 machines were removed to allow refurbishment works and reinstated around three months later, and a further two were removed in January 2006 due to the construction of a new bridge and have not been reinstated.

[15] Entries on Valuation Rolls. No Valuation Roll entries have been made in respect of stances for the appellants’ vending machines elsewhere on the railway network in Scotland, including within the Highland Area. Para. 7 of the Non-Domestic Rating (Valuation of Utilities) (Scotland) Order 2005 provides, broadly, for one composite entry for railway subjects in Scotland to be made in the Valuation Roll for Highland. “Premises or rights so let out as to be capable of separate assessment” (except certain subjects used wholly or mainly for railway purposes) are not to be included in this composite entry.

[16] Some ‘hole in the wall’ ATM sites at Waverley Station and elsewhere; stances for photo booths; and defined areas within a shopping mall let as wheelbarrow stances (the wheelbarrows themselves being moveable and not rateable) have been entered on the Valuation Roll by the Lothian Assessor.

Appellants’ Submissions

[17] Mr McIver started by emphasising that the machines were not rateable and the focus was on the stances themselves, which were small areas of railway property and which were not themselves identifiable as separate lands and heritages. The appellants did not occupy the stances in the sense of rateable occupation. They were simply small areas upon which a piece of moveable equipment had been placed: if that was lifted or removed, the lands and heritages remained as before. The lands and heritages did not alter. Mr McIver referred to the draft agreement as confirming that the stances were not identifiable as separate lands and heritages, particularly at Conditions 3.1, 11, and 8, especially 8.3. Network Rail retained the right to possession of the stances. On any rational aspect a stance was not a separately identifiable land and heritage. These were the only such stances entered in Valuation Rolls in Scotland, the situation at Inverness Station being of particular interest because of the Highland Assessor’s statutory role in valuing railway property in Scotland. Mr McIver referred to Clydesdale Bank, particularly at 169D, 170B-C and per the Lord Justice Clerk at 171D-171I and Lord Clarke at 171L-172B.

[18] Alternatively, Mr McIver submitted that the stances were not capable of separate assessment because Network Rail was the dominant or paramount occupier. The appellants’ rights under the draft agreement related only to the equipment. The ATM machines in Clydesdale Bank had been installed for similar periods. Although there was less strong consistency with the owners’ purposes than in that case, this could be no higher than an indication as to separation and the position at Waverley was not materially different. He referred to the Utilities Order, particularly Para. 7(2)(e); Conditions 3.1, 3.2, 3.3, 5.1.3., 5.2, 5.4.4, 5.7, 5.9, 5.13, 5.16, 5.18, 5.23, 6.1., 6.2, 7.3, 7.5.6, 8.3 and 11 of the draft agreement; Armour at 17-02B to 17-02M and 14-03 to 14-06, 14-15 to 14-27; Westminster City Council v Southern Railway per Lord Russell of Killowen at 529-532, Lord MacMillan at 539-540 and Lord Wright MR at 549, 550 and 560-561; Assessor for Renfrewshire v Old Consort Company Limited per Lord Patrick at 233 and Lord Guest at 241; David Allen & Sons Billposting Limited v Assessor for Clydebank at 319 and per Lord Hunter at 330; Glasgow Corporation v Assessor of Public Undertakings; LNER v Assessor of Public Undertakings, particularly at 797; Austin Reed Limited v Assessor for Glasgow (Case 1) at 318 and 324; and Clydesdale Bank.

Assessor’s Submissions

[19] Mr Clarke referred to the same authorities with the addition of Dante v Assessor for Ayr and the Tribunal’s discussion in its Opinion in Clydesdale Bank. He stressed a purposive approach. Paramountcy turned on who was using the subjects and for whose benefit. The draft agreement was not much to the point because the Tribunal had heard evidence about a robust process in which the parties got together and decided where the machines would be put. In Clydesdale Bank, the Tribunal and the court had characterized the ATMs as having been provided for the benefit of the shops (“the bank supplies the retailer”), rather like photocopiers, although also for mutual benefit, as opposed to, here, the appellants asking the railway company to have its machines in their station. On the evidence, the purpose was not to provide or enhance the travelling experience. There could be a conflict of the companies’ interests, e.g. on a busy platform, the primary use by Network Rail being to get people on and off trains. The machines were not required in the station, where the passengers would go anyway. They were not provided for the benefit of the railway company’s business except as a source of income. They were used solely, or at least primarily, for the appellants’ benefit. Accepting that there needed to be an agreement defining the subjects, that might be express or implied and there was evidence of the process leading to such agreement involving the provision of power to the stance. There had to have been such agreement. The stance was defined (in most cases) by laying the concrete plinth. Again unlike Clydesdale Bank, the subjects would not simply disappear on being moved, because there was a provision for notice. There was rival occupation. The plinths differentiated these subjects from “trifling areas of floor space” (Clydesdale Bank per Lord Justice Clerk at Para 24) and the Tribunal should find that the appellants had a right of occupation. Mr Clarke referred to a transcript of evidence before the Committee in Austin Reed, showing a term in the agreement that in the event of refurbishment the display case had to be moved. In the present case, the robust process of discussion between Network Rail and the appellants conferred a right to space, so there was in this case something in the arrangements providing for possession of the sites (c.f. Clydesdale Bank per Lord Clarke at 171L) and there was occupation.

[20] Mr Clarke and Mr McIver each also made brief submissions on the question whether the concrete plinths could be heritable by accession.

Tribunal’s Consideration

[21] Situations in which smaller areas within larger subjects are proposed to be separately assessed for non-domestic rating can cause difficulty and involve fine points of distinction although the general principles are well established and not in issue. The question is whether there is a separate unit of ‘lands and heritages’ which is the subject of rateable occupation, which where there are competing occupiers must be paramount occupation, by a party other than the occupier of the ‘host’ subjects. ‘Comparables’, i.e. examples of the treatment in practice of apparently similar situations as opposed to authoritative decisions and guidance, may be of interest but may not be of much assistance.

[22] Railway and other public transport locations have raised such issues because, for example, retailing, catering and advertising activity involving companies other than the operating companies is common. There has for many years been another factor in relation to railway subjects, because of the practice of composite assessment of railway subjects under exclusion of inter alia “premises or rights so let out as to be capable of separate assessment”: application of that exclusion should avoid either double-counting or the overlooking of land value. An appeal against the entry of the proposed separate subject does not directly raise that test, but many of the authoritative decisions in this area were in fact applications of it.

[23] In the present case, it is hard to avoid comparison with the recent authoritative decision in the Clydesdale Bank case about ‘ATMs’ or cash machines, which in that case were ‘free standing’ as opposed to ‘hole in the wall’. That case, like the present case, involved ‘bare’ sites in the sense that there was no suggestion that what was placed on the sites (the machines) was rateable. The sites were simply areas within shops of floor space not physically identifiable other than when the machines were placed on them. The decision of the Tribunal that the sites were not separately occupied, and therefore incorrectly entered separately in the roll with the banks as occupiers, was upheld by the Lands Valuation Appeal Court. It is, however, clear, as the Lord Justice-Clerk accepted, that:-

“within larger subjects an area of floor only that is used as the site for an item of moveable property can be entered in the roll as lands and heritages in separate rateable occupation.”

Austin Reed, involving an area of ground within a station booking hall, is an example of such a case. Each case must be decided on its own facts and circumstances, and Mr Clarke argued powerfully on the Assessor’s behalf that the circumstances of this case were materially different from those in Clydesdale Bank.

[24] Although possible, it is difficult to identify a separate unit of rateable occupation where there is no building or other rateable item on it and no delineation of it with the result that neither before nor after a moveable item (here a machine), has been on it can the site, i.e. the proposed subjects on the roll, be identified. A way has to be found of identifying separate subjects. It is necessary to consider the arrangements in place, i.e. to look at the extent of agreement between the ‘host’ and the proposed separate occupier to see whether there is such possession of the site as to amount to separate occupation. In Clydesdale Bank, the court, upholding the Tribunal, was clear that there was no such occupation. Neither of the agreements had the effect of conferring a right of occupation of the floor spaces. As the Lord Justice Clerk put it, at 171 H-I:-

“Both agreements relate to the supply, use and control of an item of moveable property that the bank supplies to the retailer, whether or not the bank looks after it on a day to day basis, for use by the retailer as one of its retail attractions. Neither agreement expressly or impliedly confers any right of occupation of the site by the bank. The bank cannot be said to “occupy” the floor space in any real sense. It has at most a right of access to the machine.”

Lord Clarke said at 172B:-

“The contractual arrangements, in both cases, are simply agreements regulating the provision, operation and use of moveable machines.”

[25] Looking at the arrangements in the present case, we find first the draft agreement. This appears to us predominantly to relate to the machines and not the sites and, as in Clydesdale Bank, to provide little if any support for separate assessment of the sites. We accept that various conditions put the appellants in substantial control of the machines, but Network Rail is to retain control of the sites (Conditions 8.1, 8.2, 8.3). A clause regulating as between the parties liability for any rates or taxes relates to the machines, not the sites (5.13). The sites are not identified. The machines are to be installed “in such positions as may be approved from time to time by Network Rail”. The machines can be removed (leaving no identifiable sites) at the instance of Network Rail, entirely at their discretion, at a minimum of 3 days’ notice (6.1, 6.2.1).

[26] We should mention that we do not regard any of the following conditions as adverse to a finding of occupation by the appellants: 3.21 (limiting access to station opening hours); 5.7 (requirement to comply with Network Rail’s regulations); 7.3 (power of Network Rail to close railway property in various situations). Some regulation of occupation can be entirely consistent with a lease and with rateable occupation, and one would expect to find similar provisions in the leases of shops and kiosks within the station although separate entries for these are presumably normal. We would also not attach any particular significance to the characterization of the arrangements as constituting a licence and not a tenancy (Condition 11).

[27] Mr Clarke asks us to find on the evidence that the precise sites were identified in the process of negotiation between Network Rail and the appellants, so that this lacuna in the written agreement is filled by the evidence of oral agreement, no precise requirement as to the form of agreement being necessary to establish rateable occupation. However, this must be so in virtually every case where machines or the like are installed with the occupier’s agreement: by the time the machines are installed there must have been agreement where they are to be installed. It was certainly so in Clydesdale Bank (page 169B). It seems to us that such oral agreement could not alter a written agreement the effect of which, put shortly, would be to leave Network Rail with an absolute discretion both as to the positioning of the sites and as to removal (subject to three days notice) of machines.

[28] The situation about agreements is, however, more complicated than that, because the written agreement is only a draft and in this case it is only that, i.e. there is no detailed agreement (although we have accepted on the evidence that the actual arrangements appear consistent with it). That may not matter much to Mr Clarke’s argument, because the agreement does not really advance his argument and indeed he suggested that it was “not much to the point at all”. It seems to us, however, that even if we were to ignore the draft, there would still be nothing to indicate any form of secure agreement conferring occupation on the appellants. If, for example, there were no written agreement and simply the discussions which must ultimately have involved identifying the precise sites as Mr Clarke contends, the machines would only be on the sites subject to the absolute discretion of Network Rail to have them removed.

[29] On the evidence as to what was actually agreed, therefore, we could not find rateable occupation. The agreements are about the presence and use of the appellants’ machines from time to time on Network Rail’s platforms and concourses.

[30] The assessor, however, directs our attention also to the actual situation. We are inclined to accept that it can be legitimate and indeed appropriate to look also at what actually happens, in order to discover the substance of the agreements. (We have in mind here some decisions, reviewed in Armour at 17-02K, to which we were not referred, in relation to the use of railway property for storage, and in particular perhaps British Transport Commission v Assessor for Inverness-shire, where an agreement did not identify the site but that gap was made good by a particular combination of facts and circumstances.) Certainly, the general arrangement between Network Rail and the appellants have been in place since June 2005 and most of the machines have remained where they were installed since that date. Machines on some of the platforms have, however, been removed at the instigation of Network Rail on a number of occasions, usually being reinstalled following refurbishment works. Two machines at one location were removed, albeit before the date of the entry appealed against, to permit the construction of a new bridge, and not reinstalled. Even with temporary removals, the site will be indistinguishable from the rest of the platform. Perhaps more tellingly, the appellants could do nothing to prevent Network Rail, for whatever reason, giving 3 days’ notice of removal of all the machines, although this has not happened. We saw no reason to doubt Mr Noble’s evidence to this effect. The precarious nature of the appellants’ presence at the sites is actual as well as a matter of (draft) contractual provision.

[31] A major plank of Mr Clarke’s argument was that the machines were installed solely or primarily for the appellants’ benefit. This, he said, contrasted with the findings of the Tribunal in Clydesdale Bank, where the equipment was provided for the benefit of the shops, although also for mutual benefit. In the course of holding that the agreements did not confer a right of occupation on the banks, the Lord Justice Clerk, said, at 171H-I:-

“Both agreements relate to the supply, use and control of an item of moveable property that the bank supplies to the retailer, whether or not the bank looks after it on a day to day basis, for use by the retailer as one of its retail attractions.”

The position here, said Mr Clarke, was quite different: the ATMs in the shops were for the shops’ business, whereas the only reason people went to stations was to travel in trains, so that the appellants’ activities there were a ‘rival’ occupation which was paramount at the sites. He founded particularly on evidence which he elicited from Mr Noble to the effect that Network Rail had not approached the appellants and asked them to instal machines: the appellants encouraged people to take their machines, i.e. solicited the business.

[32] The purpose and benefit of an activity would indeed appear relevant to the issue of paramountcy of occupation. Mr Fowler’s evidence (from his precognition which was taken as read, at para 5.3.2) reflects that:-

“The nature and character of Selecta’s possession and occupation is not possession and occupation on behalf of Network Rail but possession and occupation on its own behalf for the purpose of meeting its own commercial obligations and carrying on its own business.”

Where there are rival occupations, it is necessary to decide whose occupation is paramount. Mr Clarke distinguished paramountcy from dominance, and submitted that the sites were used solely or primarily for the appellants’ benefit. ‘Primarily’ may be only just above half. In our opinion, however, this consideration cannot be decisive in identifying a unit of occupation when the land is simply an undelineated area of ground identifiable only by the presence (albeit with the agreement of the ‘host’) of a non-rateable machine on it, that presence being terminable at the instance of the ‘host’. In such circumstances, this factor carries little weight: even if these machines were on the sites for the sole benefit of the appellants, we would still have difficulty in finding that the sites were separate occupational units.

[33] We were in any event not persuaded that the situation was so markedly different from Clydesdale Bank (particularly, perhaps, at the “Botterills sites” in that case). The appellants and their business are, we accept, entirely separate from Network Rail. It seems to us, however, that a purpose of supplying snacks to rail travellers is within the scope of the railway undertaking, as part of their ‘offer’ to travellers. Snacks are routinely supplied on trains. The genesis of the appellant company was partly the supply (by Travellers Fare Limited) of refreshments to railway travellers. Network Rail have to approve the type of refreshments offered from the machines, a provision going, we think, slightly beyond a standard use restriction. The fact that the business has gone out to separate commercial enterprises, while of course introducing joint or mutual benefit, does not to our mind make it a rival or ‘competing’ business, any more than having banks install cash machines in shops. Nor does the fact that certain platforms are too crowded to be able to accommodate the appellants’ machines safely make this a ‘competing’ business: Network Rail might, for example, keep ticket machines off busy narrow platforms for the same reason. Nor does the fact that the appellants approached Network Rail to have something in their station which had not been there previously: a photocopier company might approach the occupier of an office first.

[34] There are differences from Clydesdale Bank. Railway stations are much more open and public places than the Marks and Spencers and Botterills shops in which the ATMs were sited. In the Marks and Spencer case in particular, the arrangements were apparently at the retailer’s initiative. However, we see more similarities between the two situations: banks obtain income from the use of the ATMs and would not agree to instal them if it was not in their commercial interest as well as that of the shops; the public has access to shops as well as to railway stations; while most users of both types of machine may be customers of the shop or, as the case may be, railway travellers, that is not necessarily the case; cash withdrawn from the ATMs, like snacks purchased from the appellants’ machines, may not always be consumed on the premises; both the banks and the appellants pay the ‘host’ companies. It may be said that cash machines encourage shoppers to purchase whereas users of station vending machines may be travelling by rail anyway, but the vending machines are provided as part of the travelling experience. Both sets of appellants appear to us, although paying for the privilege, to be in practice, as well as under the draft agreement, supplying a service on others’ premises rather than renting the sites.

[35] In short, as well as questioning how far considerations of purpose and benefit could go towards establishing separate units in the circumstances of this case, we are not convinced that they would point as clearly towards separate occupation as Mr Clarke suggested. Even if this activity within the station is primarily for the appellants’ benefit, it is also in our view of significant benefit to Network Rail.

[36] Mr Clarke drew our particular attention to Austin Reed, the case of a ‘bare stance’ for an advertising showcase. In that case, as the Lord Justice Clerk pointed out in Clydesdale Bank, the finding in fact, relied on by Lord Fleming, was that this area of floor space was clearly defined in a written agreement. Mr Clarke was able to demonstrate to us from the relevant Session Papers that the evidence before the Committee was that the agreement contained a provision that in the event of structural alterations being necessary at the location, the showcase was to be transferred to another mutually agreed site. That, said Mr Clarke, was similar to the arrangement here. We are not sure how much reliance should be placed on this when Lord Fleming’s consideration did not (at least expressly) advert to it. In any event, however, that was a contract for a term of 5 years, in relation to an identified site, with the option, in one particular circumstance, of providing an alternative site for the remainder of the term. We are aware that similar ‘redevelopment’ clauses are not uncommon in modern commercial leases. The agreement in that case was found to be a lease of space. The arrangements in the present case are about the use of machines at locations to be agreed from time to time. Even after the site is identified, there is no fixed term and the appellants’ presence is at the complete discretion of Network Rail.

[37] The Assessor, while not arguing for rateability of the machines, drew some support from an appearance of fixture. All the sites have hard-wired electricity connections (although no plumbing). Most have concrete plinths. In three cases, parts of platform barriers are removed to accommodate the machines. However, the surface is not damaged in any way, even by the concrete plinths. The processes of installation and removal take no more than 4 hours, do actually happen from time to time and leave the sites exactly as they were. We do not consider that the actual practice in this regard advances the Assessor’s position. Nor do we think that it is necessary to distinguish between those sites which had the concrete plinths and those which did not. Mr Clarke, in a fall-back position, suggested that while the machines were not rateable, the concrete plinths could be heritable by accession, i.e. part of the proposed entries, thus providing a slightly better basis for finding a separate occupational unit in these cases. Again, on the evidence as to the lack of attachment and the simplicity and speed of installing and removing the plinths, we are unable to accept that.

[38] It does seem to us relevant also to consider the smallness of each site in proportion to the surroundings. We of course appreciate that rateable occupation of such sites is possible, as Austin Reed shows, but when it is also remembered that there is no delineation of the sites, they are not altered in any way and the station operators are free to decide at any time whether to have the appellants’ machines on them, we think that viewing them as simply parts of the platforms or concourses occupied and controlled by the railway operators (by contrast, for example, to the enclosed shops and kiosks within the station), rather than the subjects of leases, is realistic.

[39] If it were necessary to consider the issue as one of paramountcy of occupation, i.e. if there were units of lands and heritages which the appellants might be held to occupy, we would still conclude that Network Rail were the rateable occupiers. The crucial point here would be that rateable occupation of the sites, not control over the machines, was in issue. The machines might be said in a sense to occupy the sites, but when the site alone is considered, the appellants’ position must be subordinate to that of Network Rail who in a real sense retain control of the sites. We note the Lord Justice Clerk’s similar conclusion in Clydesdale Bank, at 171J. Cases such as Westminster City Council v Southern Railway, Assessor for Renfrewshire v Old Consort Company and James Mackie (Paisley) Limited all involved premises (or, in the latter case, the ground itself) exploited for the benefit of the company granted use of them, by contrast with bare sites, controlled by Network Rail, on which non-rateable machines are placed.

[40] In all the circumstances, therefore, even if it is accepted that there might possibly be cases in which the overall picture might put a different light on what has actually been agreed, there are, in our opinion, no separate lands and heritages occupied by the appellants.

[41] As we indicated at the outset, comparison with the treatment of other similar situations is of interest only. The closest comparison is with sites said to be in the same situation, as between Network Rail and the appellants, in other valuation areas and not entered on the roll, but there is no information as to the dates on which machines were installed, the extent or value of such sites or the extent of consideration given to them by the Assessors. We do note that the entry under appeal to us is not a revaluation entry. The fact that they are not in the roll in the Highland area may seem more instructive, in view of the Highland assessor’s role in valuing the railway undertaking, but, again, it is not clear to what extent this matter received separate consideration. The Assessor referred to separate entries for ‘hole in the wall’ ATM sites and certain other stances. ‘Hole in the wall’ ATM sites are in a different position although we understand that the principle of entering these, at least in some situations, is also again under appeal. As to the other stances, there was insufficient evidence to establish whether they were truly comparable situations.

Conclusion

[42] For these reasons, we allow this appeal and direct that the entry under appeal be deleted.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 October 2009

Neil M Tainsh – Clerk to the Tribunal