Judgment of Mr. Justice Barrington delivered the 27th day of July,1989.
This is a case stated by Judge Sean Mac D. Fawsitt, Circuit Judge assigned to the Cork Circuit and is dated the 9th day of May 1988.
Judge Fawsitt has since retired.
The case stated runs into some 27 pages of typescript and contains references to numerous maps, drawings, photographs and exhibits. It should be regarded as appended to this Judgment.
There were in fact 23 Appeals before the learned trial judge but many of them raised identical or similar issues and the learned trial judge was able to deal with the matter under seven subject numbers.
The Appellant Company is an Industrial and Provident Society registered under the Industrial and Provident Societies Acts having its registered office at New Square, Mitchelstown in the County of Cork where it has a large and extensive manufacturing complex. Its principal activity is the manufacture and distribution of dairy and meat products, grain processing and general trading. Its main processing units are located in and near Mitchelstown and the Appeals are concerned with these units only.
The grounds of appeal set forth in the Notices of Appeal are summarised by the learned trial judge as follows:
(1) That all the grain silos/bins which were rated as buildings in the buildings column of the Valuation Lists were not buildings within the meaning of section 12 of the 1852 Act and were not rateable as such and further that such grain silos/bins with their ancillary apparatus and equipment were exempt from rating pursuant to Section 7 of the 1860 Act as non-motive power machinery.
(2) That all the milk silos/tanks, whey tanks, cream tanks, detergent tanks, acid tanks, caustic tanks, heavy fuel oil tanks with their ancillary apparatus and equipment respectively and the weighbridge which were rated as buildings column of the Valuation Lists were not buildings within the meaning of Section 12 of the 1852 Act and further that such tanks with their ancillary apparatus and equipment and weighbridges were exempt from rating pursuant to Section 7 of the 1860 Act as non-motive power machinery.
(3) That all tanks, regardless of function, use or operation which were rated as buildings in the buildings column of the Valuation Lists were not buildings within the meaning of Section 12 of the 1852 Act and were not rateable as such.
On the hearing before the learned trial judge it was admitted that all the statutory requirements regarding Valuation Appeals had been complied with and that the parties were properly before the Court. It was also agreed that the quantum of rateable valuation was not in dispute and that the issue for the Court to decide in each case was:-
(a) The rateability or otherwise of the disputed items as buildings in the buildings column of the Valuation List.
(b) The exemption from rating of certain grain silos/bins, milk silos, cream tanks, detergent tanks, acid tanks, caustic tanks, heavy fuel oil tanks with their ancillary apparatus and equipment and all weighbridges as being machinery in the manufactory other than that used for the production of motive power.
In the case stated the learned trial judge summarises the evidence of the Appellant's Engineer, Mr. Timothy Murphy at paragraph 9 subparagraphs (1) to (51); of Mr. Michael McNally, the Appellant's grain manager at paragraph 10 subparagraphs (1) to (15); and of Mr. Arthur O'Grady, Chief Group Engineer of the Appellant Company, at paragraph 11 subparagraphs (1) to (20).He summarises the evidence of other witnesses at paragraphs 12, 13 and 14. He then goes on to state at paragraph 15:
"I accepted and found the facts as set out in paragraphs 9 (1) to (51) inclusive, 10 (1) to (15) inclusive and 11 (1) to (20) inclusive."
The effect would appear to be that the learned, trial judge accepted all the evidence as to facts (including evidence of expert opinion) set out in those paragraphs. This evidence was clearly led by Counsel who was totally familiar with recent decisions on Valuation Law and was designed to bring the present cases within those decisions. There is nothing wrong with that. Clearly it is Counsel's job to advise his proofs and marshal the evidence in such a way as to achieve the maximum effect for his client within the existing law. No one can criticize him for that. Nevertheless, reading the case stated, one gets the impression that the draftsman has designed it in such a way as to plead complex and very difficult problems within the paramaters of known decisions on Valuation Law. Again, the draftsman cannot be blamed for this. The learned trial judge has adopted the draft as his case stated and this is the only case stated to this Court. The result however is to place Mr. Winder, who appears for the Commissioner of Valuation, in an almost impossible position as all matters of fact and expert opinion have been found against him.
The Judgment of the learned trial judge was as follows:
(1) That the rateable valuation fixed by the Respondent for each subject was excessive and bad in law.
(2) That each subject was part of a manufactory within the meaning of Section 7 of the 1860 Act.
(3) That the grain bins at Limerick Road and the Read and Massey Ferguson bins were machinery other than that used for the production of motive power in the manufactory and therefore exempt from rating pursuant to Section 7 of the 1860 Act.
(4) That none of the said grain bins and none of the intake bins, seed bin and outloading bins was a building within the meaning of Section 12 of the Valuation (Ireland) Act 1852 and were not rateable as such.
(5) That the milk tanks, whey tanks, cream tanks, detergent tanks, acid tanks and caustic tanks with their ancillary apparatus and equipment were machinery other than that used for the production of motive power and were therefore exempt from rating pursuant to Section 7 of the 1860 Act.
(6) That each and every tank in the entire complex, the subject matter of these Appeals, was not a building within the meaning of Section 12 of the 1852 Act and was not rateable as such. That the weighbridge is machinery other than that used for the production of motive power and is exempt from rating.
(7) That the amount of the valuation attributed to the items in dispute in each subject and each Appeal was agreed as set out in the Precis of Evidence of Desmond Killen and
that the valuation of the items which were admitted as rateable was also agreed.
(8) I ordered that the rateable valuation in each Appeal be reduced by the amounts attributed to the items which I found were machinery or which I found were incorrectly rated as buildings and I ordered that the costs and expenses of the Appellant of each Appeal be recovered from and paid by the Respondent when taxed and ascertained."
The learned trial judge then poses the following question for the opinion of the High Court:
"Was I correct in law in so deciding as aforesaid?"
The short answer to this question would appear -to be that the learned trial judge's conclusions of law were certainly open to him on his findings of fact and appear indeed to have been virtually dictated by them.
Mr. Winder has argued however, that, at least in some cases, the learned trial judge was obviously wrong. For instance, he submits, that what is or is not a "building" is largely a matter of first impression and commonsense. He points to the first photograph in the album of photographs attached to the case stated. This bears the caption "external view of grain bins at Limerick Road" but it appears to be a photograph of a modern factory building of barn type construction. Any layman looking at it would regard it as a building. Moreover, Mr. Winder submits that it is a building containing a number of bins used for the storage of grain. There are he submits a number of devices in the building to keep the grain in good condition but, he submits, what goes into it is grain, and what comes out, some months later, is also grain and the edifice should be regarded as a storage building.
Mr. Daly, however, who appears for the Co-operative Society, says things are not what they might seem from the photograph. He admits that the photograph shows a building. But the building, he says is a barn type or penthouse structure supported on steel stanchions. But what appear from the photograph to be the "walls" of the building are not in fact walls but are the sides of a number of bins used to hold grain. Mr. Daly admits that the "penthouse" is a building but says that the bins, which are 16 in number, are not a building or part of a building but are part of a sophisticated and complex system, which includes temperature and moisture controls, and which is designed, not merely for the storage of barley, but for the handling of it and for turning it, or allowing it to turn into, malting barley. To say that grain goes in and grain comes out is, he submits, an over simplification. Barley goes in and malting barley comes out. The changes caused are facilitated by the way the barley is treated in the complex.
The Society's Consulting Engineer, Mr. Timothy Murphy puts the matter as follows at paragraph 9 subparagraph (23) of the case stated:
"The bins together with the various handling facilities are one indivisible complex of machinery and all rely completely on the other for their function and are an automatic mechanical grain handling complex rather than a storage complex. If the Appellants had required storage facilities only they would have constructed flat stores rather than bin storage, in other words they would have built a large flat grain store. Such a store would be built for a fraction of the cost of the bins and would be multipurpose for use other than grain storage. The said bins are purpose designed and can only be used to handle grain."
As this is not only Mr. Murphy's evidence but is accepted by the learned trial judge as a finding of fact it appears to me that the learned trial judge was entitled to hold - and indeed had no choice but to hold - that the bin complex (exclusive of the penthouse) was machinery and not buildings. The complex referred to above is situated at Limerick Road and is referred to in the case stated as Subject Number 4. The Society also has grain handling facilities at Clonmel Road (referred to in the case stated as subject number 3). This complex appears to be somewhat less sophisticated than that at Limerick Road. But Mr. Daly again submits that it should collectively be regarded as a grain handling complex and therefore machinery.
The effect of Mr. Murphy's evidence is summarised at paragraph 9 subparagraph (29) of the case stated as follows:
"By using these facilities together with the said twelve bins it is possible to carry out the processes and handling activities which have been described in relation to the grain bins at Limerick Road subject number 4, including sampling, drying, aeration, turning, mixing/blending, cleaning and temperature control."
Again the learned trial judge has incorporated the contents of this passage in his findings of fact and again it appears to justify and dictate his conclusion that the complex as a whole constitutes machinery.
The same kind of reasoning appears to me to support the findings of the learned trial judge that the Society's butter and cheese factories (subjects numbers 5 and 7) should not be broken down into individual tanks and vessels but must be regarded as a collective complex designed to produce a particular result and must therefore be regarded as machinery other than that used for the production of motive power. The evidence of the Society's Chief Group Engineer, Mr. Arthur O'Grady, on the question of the Society's milk tanks is summarised at paragraph 11 subparagraph (10) of the case stated and reads as follows:
"All the milk tanks are constantly involved in the process and are integral parts of the process of manufacture of the said products and movement and therefore application of force is constantly taking place in and through the tanks."
Again this is one of the findings of fact of the learned trial judge and appears to justify and dictate his decision that the milk tanks cannot be regarded simply as stationary vessels but must be regarded as part of a complex which in turn constitutes machinery other than that used for the production of motive power.
Mr. Winder did not seriously dispute that weighbridges are properly regarded as machinery other than that used for the production of motive power.
Finally, there are a number of bins (such as those referred to in subject number (1) and tanks which do not form part of a mechanical process. There was evidence, which thE) learned trial judge accepted, that these bins and tanks were not "buildings" in any conventional meaning or use of that word. The learned trial judge has held that these bins and tanks were not buildings and it appears to me that there was ample evidence and ample authority in law to support his conclusion.
I have already commented upon the difficulty in which Mr. Winder found himself in view of the form of the case stated in this case. Indeed Mr. Winder stated that, but for the fact that the learned trial judge had retired, he would have asked me to refer the case stated back to him. In the circumstances, Mr. Winder asked me to invoke a residual discretion which he suggested I had under Section 1.1 of the 1860 Act to make an Order outside the Order contemplated in the case stated. It appears to me however that the learned trial judge was perfectly entitled to make the findings of fact which he did make and that I would not have been justified in referring the case stated back to him.
In the circumstances I propose simply to answer the question posed at paragraph 17 of the case stated and to say that the learned trial judge was correct in law in making the decisions set out in paragraph 16 of the case stated.