England and Wales Lands Tribunal

[2000] EWLands RA_378_1996 (18 February 2000)


 


RA/378/96

LANDS TRIBUNAL ACT 1949

RATING - hereditament - occupation - floating restaurant moored to dock wall - held to be rateable as part of hereditament consisting of dock bed, floating restaurant and mooring - rateable occupation of this hereditament held to exist

IN THE MATTER of an APPEAL AGAINST A DECISION of the

LONDON (NORTH EAST) VALUATION TRIBUNAL

BETWEEN DAVID FELGATE Appellant

(Valuation Officer)

and

LOTUS LEISURE ENTERPRISES LTD Respondent

Re: Dock Bed

Floating Restaurant

Mooring and Premises

38 Limeharbour

London E14 9RU

Before: The President

Sitting at 48/49 Chancery Lane, London WC2A 1JR

on 14 and 15 February 2000

The following cases are referred to in this decision:

Field Place Caravan Park Ltd v Harding [1966] 2 QB 484

Thomas (VO) v Witney Aquatic Co Ltd [1972] RA 493

Woodbury (VO) v Yard Arm Club Ltd [1989] RA 381

Floatels (UK) Ltd v Perrin (VO) [1995] RA 326

LCC v Wilkins (VO) [1957] AC 362

Cory v Bristow (1877) 2 App Cas 262

R v Leith (1852) 1 E & B 121

Bradshaw v Davey (VO) (1952) 45 R & IT 86

Mersey Master Mariners Club v West Derby Assessment Committee (1951) 44 R & IT 358

Assessor for Glasgow v RNVR Club (Scotland) Ltd 1974 SLT 291

Redgates Caravan Parks Ltd v Assessor for Ayrshire 1973 SLT 52

Ryan Industrial Fuels Ltd v Morgan (VO) [1965] 1 WLR 347

Commissioner of Rating and Valuation v Yui Lian Machinery Repairing Works Ltd (1983-85) CPR 401, (1985) 2 HKC 517

John Laing and Sons Ltd v Kingswood Area Assessment Committee [1949] 1 KB 344

Gilbert (VO) v S Hickinbottom and Sons Ltd [1956] 2 QB 240

Tyne Pontoons Co v Tynemouth Union (1886) 76 LT 782

Smith's Dock Co v Tynmouth Corporation [1908] 1 KB 315

Watkins v Milton-next-Gravesend Overseers (1868) LR 3 QB 350

Timothy Mould instucted by the Solicitor of Inland Revenue for the Appellant

JP Scrafton, solicitor, for the Respondent

DECISION

1. The question in this appeal by the valuation officer is whether a floating restaurant moored in Millwall Dock is rateable. Put more precisely, and in terms of the entry made in the rating list by the valuation officer, the question is whether or not there was at the material date a hereditament described as "Dock Bed, Floating Restaurant, Moorings and Premises" at 38 Limeharbour, London E14 9RM.
2. The valuation officer altered the list so as to make a new entry in these terms at a rateable value of £92,000 with an effective date of 9 November 1994, and the proposal by the respondent ratepayers to reduce the assessment created an appeal which was determined by the London (North East) Valuation Tribunal. The decision of the valuation tribunal was that the entry should be deleted. The parties are agreed that if the valuation officer is right in his contention on what constitute that hereditament the Rateable Value is £67,500. I was told that the parties are also agreed that, if the valuation officer is held to be wrong in his contentions, the correct entry would be one which related to the mooring for the vessel at a Rateable Value of £33,250, reflecting the enhanced value given to the mooring by the presence of the vessel. (I cannot myself see why the presence of the vessel should enhance at all the value of the mooring: but this is not a matter in issue.)
3. The material facts are not in dispute. There was an agreed statement of facts and the evidence of the only witness, Mr A P Phillips, to which I shall refer later, was not contentious with regard to primary fact. I inspected the restaurant and its surroundings on 16 February 2000. The Lotus is a Chinese restaurant on a barge moored on the east side of the former Millwall Inner Dock close to the London Arena on the Isle of Dogs. The vessel is approximately 49m long and 9m in the beam. It comprises the steel hull of what was evidently built as a lay barge. It is rectangular in form with a flat deck supported by bulkheads. It has no means of propulsion or steering. In the lower deck area, between the bulkheads, are the kitchens, stores and toilets. On the deck has been erected a superstructure of two storeys in the form of a Chinese building with a pitched roof. The main storey or deck comprises reception area, bar and main restaurant, and the top deck contains further restaurant seating.
4. The vessel was built in Holland and was towed to Greenwich where substantial works of conversion were carried out; and it was then moved to its present location where it was fully fitted out. It has been in use since 9 November 1994. Since that time it has not been moved except that on two occasions each year it has been towed from its mooring by a tug to the other side of the dock for the purpose of undertaking essential maintenance to the hull. The operation lasts no more than a few hours.
5. The vessel is connected to the dock wall by three hawsers at the bow and two hawsers at the stern. Both hawsers are looped over bollards. Within the length of the vessel there are two connections to the dock wall by means of steel hawsers, shackles and a bar fixed to the dock wall. At the bow and the stern an approximately 10m from each, there are two steel rams which touch the dock wall on rubber rollers.
6. The vessel is connected to all main services, including gas, electricity, water, telephone and drainage, via flexible and detachable connections. These services always remain connected, except when the vessel is moved for maintenance. They can be readily disconnected, for instance in the event of a fire in the London Arena. Access is by means of four wooden and steel gangways resting on the dockside. The gangways rest on rollers to allow for the vertical movement of the water in the dock.
7. The vessel is owned by Lotus Leisure Enterprises Ltd. At the material date the freehold interest in the dock bed and the dock wall was owned by the London Docklands Development Corporation. In October 1997 the title to these premises as well as other docks and dockside buildings were transferred from the Corporation to the British Waterways Board. The dock was not assessed for rating purposes during LDDC's ownership (and thus at the material day) but BWB have been rated for it since 1997. At the material day the company moored the vessel and enjoyed the service connections and access under the terms of a draft lease, which was eventually executed on 28 April 1995. The lease is for a term of 20 years from 17 March 1995, determinable by the lessee on 6 months notice. The premises demised were stated to be:

"All that area of water shown edged red on the Plan annexed hereto and forming part of Millwall Inner Dock."

8. The lessee covenanted not to use the premises otherwise than "for the mooring of not more than one vessel not exceeding 60 metres in length and not displacing more than 750 tonnes ... for use as a high class Chinese Restaurant seating not less than 70 nor more than 500 people and for no other purpose" without the previous written consent of the landlord. A yearly rent is payable consisting of a basic rent and a turnover rent based upon the turnover of the restaurant business. Rights of access along the dock side and rights of the free and uninterrupted passage and running of services were granted to the lessee.
9. The following provisions of the lease are also to be noted. The lessee must maintain the vessel in a seaworthy condition. It must permit the lessor after prior written notice has been given to enter the demised premises to alter, maintain or repair the dock wall or dock bed, and the lessor may for these purposes on prior written notice cause the vessel to be moved to an alternative mooring in the dock. The lessor may at any time serve not less than 6 months notice on the lessee and thereafter tow the vessel to an alternative mooring in the dock and, if this is done, the lessor must grant and the tenant must accept the lease of the alternative mooring. The lessee must insure the vessel under a marine policy and the insurance must extend to include the costs of raising it and removing it from the dock in the event of its being declared a total loss. Sections 24 and 28 of the Landlord and Tenant Act 1954 are excluded by agreement, authority having been given by an order of the County Court under section 38. Finally the lessee is required to observe the Regulations issued by the Harbour Master in connection with the use of the dock.
10. It was the contention of the Respondent that the effect of the terms of the lease was to create not a lease but a licence. Nothing, however, turns on this. It is agreed that, whether it is a lease or a licence, it has in practice governed the relationship between the Respondent and the LDDC and its successor the British Waterways Board. The lessor has not so far, however, exercised its right to require the vessel to be moved to an alternative mooring.
11. The facts having been agreed, Mr Timothy Mould for the valuation officer called no evidence but made submissions in reliance upon the agreed facts. For the Respondent Mr J P Scrafton called Alun Powell Phillips FRICS, IRRV, MRSA, FCAAV, consultant to Cyril Leonard & Co, surveyors and valuers. Mr Phillips said that he considered that the moorings were rateable but the hereditament identified by the valuation officer failed to meet the requirement for rateable occupation. There was, he said, no occupation of the dock bed on the part of the Respondent. The vessel floated on the water and there was no connection to the dock bed. It was tied to its moorings to prevent it floating away. Nor did the lease give the Respondent the right to occupy the dock bed for any purpose at all. The lease was in his view no more than a mooring licence. It would take about 20 minutes to half an hour to free the vessel from its moorings, gangplanks and service connections. He agreed in cross-examination that there was no potential use by anyone else of the water or the dock bed below the vessel.
12. Mr Mould submitted that at the material date the Respondent was the occupier of a hereditament comprising the part of the dock bed and the water beneath the Lotus, the Lotus itself, the moorings to which the Lotus is attached, the part of the dock wall to which the Lotus is physically attached, and the ropes, steel hawsers, gangways and service connections which attach or connect it to the dock wall. It was common ground that the Lotus was a chattel and that chattels of themselves were not rateable. The law was, however, as stated by Lord Denning MR in Field Place Caravan Park Ltd v Harding [1966] 2 QB 484 at 497-8, that a chattel may become rateable together with land if it is enjoyed with it in such circumstances and with such degree of permanence that the chattel with the land can together be regarded as one unit of occupation. He said that the Lands Tribunal had been prepared to apply this proposition to vessels floating on water, and he referred to Thomas (VO) v Witney Aquatic Co Ltd [1972] RA 493, Woodbury (VO) v Yard Arm Club Ltd [1989] RA 381 and Floatels (UK) Ltd v Perrin (VO) [1995] RA 326. He referred also to LCC v Wilkins (VO) [1957] AC 362, which had provided the foundation for the decision in Field Place Caravan Park.
13. Mr Mould submitted that on the facts the Lotus was enjoyed permanently together with the dock bed lying below it so as to satisfy Lord Denning MR's test. It had been in its present location since 9 November 1994 and had only been moved from it twice each year for a few hours. Apart from these two annual occasions, it is held continuously in position by the steel hawsers and other attachments to the dock wall. It is thus in a single position over the dock bed, occupying a discrete area of water under the terms of a 20-year lease granted for the express purpose - the mooring of the vessel for use as a Chinese restaurant. The effect of the grant was necessarily to give the Respondent exclusive occupation of the area of the dock bed beneath the vessel for as long as the lease subsists. On the evidence, there was no one other than the respondent who had enjoyed occupation of that part of the dock or the dock bed since the material day.
14. Mr Scrafton submitted that there could be no occupation of the bed of a river or a dock by a vessel floating above it without some kind of permanent fixture to the bed concerned. He referred to Cory v Bristow (1877) 2 App Cas 262, R v Leith (1852) 1 E & B 121, Bradshaw v Davey (VO) (1952) 45 R & IT 86, Woodbury (VO) v Yard Arm Club Ltd (supra) and Mersey Master Mariners Club v West Derby Assessment Committee (1951) 44 R&IT 358. In no reported case, other than the local valuation court decision in 1981, had any floating vessel been held to be rateable. The floating club house in Witney Acquatic (supra) could be distinguished by the agreements on value that had been made between the parties and the by the fact that the ratepayer clearly had occupation of the whole of the bank of the lake on which the club house floated.
15. Mr Scrafton placed particular reliance on Assessor for Glasgow v RNVR Club (Scotland) Ltd 1974 SLT 291 which concerned a former wool clipper moored to a quay in the Clyde and used as a club by RNVR officers. Access to the vessel was by three gangways from the quay and it had electricity, water, gas and telephone connections. The Lands Valuation Appeals Court held that the vessel was not rateable. Mr Scrafton pointed out that Redgates Caravan Parks Ltd v Assessor for Ayrshire 1973 SLT 52, which was referred to in the decision, had established the rateability of caravans in Scots law on effectively the same basis as in Field Place Caravan Park. He also referred to a Hong Kong case, Commissioner of Rating and Valuation v Yui Lian Machinery Repairing Works Ltd (1983-85) CPR 401, (1985) 2 HKC 517. Mr Scrafton said that the determination of the identity of a hereditament and the issue of occupation is principally a question of fact, and he referred to John Laing and Sons Ltd v Kingswood Area Assessment Committee [1949] 1 KB 344 and Gilbert (VO) v S Hickinbottom and Sons Ltd [1956] 2 QB 240.
16. The proper approach, Mr Scrafton said, was to treat the mooring of the vessel as a rateable hereditament and to treat the Lotus not as part of the hereditament but as something the presence of which could be reflected in the value of the land. He referred to Tyne Pontoons Co v Tynemouth Union (1886) 76 LT 782 and Smith's Dock Co v Tynmouth Corporation [1908] 1 KB 315. The physical relationship between the vessel and the dock bed was, he said, tenuous. The valuation officer's contention was that the vessel was supported by a column of water which in turn was supported by the dock bed. The water, however, was changing from minute to minute. It was moreover an unsustainable approach to define the extent of a hereditament by including within it whatever beneath it provided structural support. In any event, the water in the dock, contained as it was by the dock walls, was necessary to every user of the dock and there could be no exclusive occupier of part of it. At the material date there had been several vessels in Millwall docks.
17. I consider first the approach to be applied in determining whether the floating restaurant is rateable. The liability of an inhabitant to be rated in respect of personal property was brought to an end by the Poor Rate Exemption Act 1840. Until then ships had been rated in the parish which was regarded as their home (see Ryde on Rating para C[453]). Since then there have been a number of cases on the rateability of moorings and various types of floating structures. Following the Rating and Valuation Act 1925, which provided for the prescription of what plant and machinery should be taken into account in valuing the hereditament, floating docks and pontoons became rateable as part of the hereditament to which they were attached provided that they were, or were in the nature of, buildings or structures. Provision to this effect is now to be found in the Valuation for Rating (Plant and Machinery) Regulations 1989. The cases on the rateability of moorings and floating vessels are considered in Ryde, at paras C [452]-[550]. The cases in the superior court are of very limited assistance because they were decided before the House of Lords in LCC v Wilkins (VO) [1957] AC 362 clarified the law on the rateability of chattels. In Field Place Caravan Park, Lord Denning MR (at [1966] 2 QB 484 at 497) drew attention to this and disapproved of the reasoning in Watkins v Milton-next-Gravesend Overseers (1868) LR 3 QB 350, where Blackburn J had held a hulk fastened to moorings in a river was not rateable, and Bradshaw v Davey [1952} 1 TLR 368, where a Divisional Court had held that a yacht mooring was not rateable. In my judgment the rateability of the restaurant in the present case must be determined in the light of the principle established in LCC v Wilkins (VO) and explained in Field Place Caravan Park.
18. LCC v Wilkins (VO) concerned contractors huts which were placed on a building site, but were not attached to the land, and remained there for 18 months. They were held to be rateable notwithstanding that they were only chattels. Lord Radcliffe at 378 thought that it was

"...well established that a structure placed upon another person's land can with it form a rateable hereditament, even though the structure remains in law a chattel and as such the property of the person who placed it there. It has been habitual practice to treat gas and water pipes, drains and sewers, telegraph posts placed in and telegraph or telephone wires placed over land as being themselves rateable subjects, yet I do not think that there is any foundation for supposing that when the undertaker, equipped either with the licence of the owner of the soil or with statutory powers, affixes his apparatus to a building or lays it in or on the soil the law regards him as thereby making it part of the freehold."

19. Lord Radcliffe went on to consider Cory v Bristow (1877) 2 App Cas 262, which concerned moorings in the bed of the river Thames, and Westminster Council v Southern Railway Co [1957] AC 362 in which structures at Victoria Station such as kiosks, small shops and show cases, resting on the ground by their own weight, were held rateable because they were in separate occupation and had a sufficient degree of permanence. He went on (at 380):

"My Lords, I think that the appellants' argument involved at one stage the proposition that, even if the surface or stratum of the land itself constituted a rateable hereditament in cases such as those I have been describing, the definition of the hereditament must be confined to the land and must not extend to the structure upon it so long as the structure remained legally a chattel. I cannot find that this distinction is borne out by the authorities and in principle I do not agree with it. When the owners of pipes, cables, posts, etc., are rated as occupiers they are rated in respect of those things themselves, by means of which they occupy land, not merely in respect of the land that is occupied: just as in Cory v Bristow it was the moorings themselves that were treated as the rateable hereditament. Indeed, in Michell Brothers v Worksop Union Assessment Committee, a case which I regard as indistinguishable in all essentials from that now under appeal, the result was achieved of rating the contractor's huts as rateable hereditaments without any alteration of the rating assessment of the area of land on part of which they stood.

In my opinion, the present case really centres round the question whether the sheds, erected on a building site by a building contractor for the purpose of his operations, involve such a degree of permanency in his occupation as to make it a rateable one. I have no doubt that, in considering this, it is at any rate relevant to ascertain to what extent and in what way these constructions have been made a fixed part of the site on which they stand, for the more casually they are attached the less likely it is that the occupation of them will be found to be a permanent one. In this sense it may be of some importance to inquire whether they are chattels or not. But to make the whole issue of rateability depend on the bare issue, for instance, whether a particular structure has or has not foundations in the ground which it a measure of lateral as well as subjacent support would be to use a legal distinction for a purpose of which it was never intended."

20. Lord Oaksey agreed with Lord Radcliffe's opinion, and Viscount Kilmuir LC said (at 372-4):

"In my view a chattel to be rateable must be enjoyed with the land and which it rests.... the test of rateability is whether there is evidence that the structures were enjoyed with the land and enhanced its value. In considering this, the intention of the erector and the other elements of annexation, period, size, quality amenities and purpose are all material. All these factors are important, but intention, and certainly what I may call the 'conscious element' in intention, is no more than one factor and its importance is not overriding."

21. Field Place Caravan Park Ltd v Harding concerned a number of residential caravans which were entered as separate hereditaments in the valuation list. In a typical case a caravan, which was on wheels, was jacked up on stays to keep it stable, and the occupier put up a fence round the pitch with a gate leading into it. The Court of Appeal held that the President of the Lands Tribunal, who had concluded that each caravan owner was occupation of his caravan and pitch as a separate hereditament, had directed himself rightly. Lord Denning MR, basing himself on LCC v Wilkins (VO), said ([1966] 2 QB 484 at 497-8):

"The correct proposition today is that, although a chattel is not a rateable hereditament by itself, nevertheless it may become rateable together with land, if it is placed on a piece of land and enjoyed with it in such circumstances and with such a degree of permanence that the chattel with the land can together be regarded as one unit of occupation. This is illustrated by three recent cases: The bookstalls at Victoria Station in Westminster Council v Southern Railway Co, Railway Assessment Authority and W H Smith Ltd; the contractor's hut in Wilkins' case; and the spoil-heap in Ryan Industrial Fuels Ltd v Morgan."

22. Two cases concerning floating structures in which this principle has been applied in this Tribunal are particularly to be noted. In Thomas (VO) v Witney Aquatic Co Ltd (supra) (Mr J H Emlyn Jones FRICS) a floating clubhouse on a lake was held to be rateable able as part of a hereditament comprising the lake itself and a strip of land along one shore. The club house was normally moored to the lake shore but during the winter months it was normally moored at an island in the middle of the lake. Woodbury (VO) v Yard Arm Club Ltd concerned a vessel, the Hispaniola, which was moored at Victoria Embankment and was used as a restaurant. It was connected by steel horns to two dolphins which were embedded in the river bed and it was also anchored fore and aft. The President, Mr V G Wellings QC, held that the part of the river bed over which the vessel was moored, together with the vessel itself, the dolphins and the anchors were a hereditament in the occupation of the club company. (In fact the hereditament was held exempt from rates under the Port of London Act 1968, and the Court of Appeal upheld the decision on this ground: see [1992] RA 1.) Mr Scrafton did not take issue with the reasoning in either of these cases.
23. I do not find Assessor for Glasgow v RNVR Club (Scotland) Ltd to be of assistance. In that case the ratepayers had argued that the subject did not fall within the definition of "lands and heritages" in section 42 of the Lands Valuation (Scotland) Act 1854. Lord Fraser, who accepted that the proper description of the subject was "a floating structure occupied as club premises" said that the sole question in the case was whether the structure was heritable or not (1974 SLT 291 at 293). He concluded that the general character of the structure was plainly and obviously that of a ship. Nobody, he said, had suggested that a ship was prima facie rateable, and it was settled that, if a thing was by its nature moveable, the mere passage of time would not make it heritable even though it is never in fact moved. He distinguished Redgates Caravan Parks Ltd v Assessor for Ayrshire on the basis that the caravans occupied sites on the land while the ship floated on water and it would, he said, only be in the most exceptional circumstances that a ship, floating on its native element, could be heritable. Lord Avonside and Lord Keith were of a similar view.
24. It is clear that the only issue in the RNVR Club case was whether the vessel had become heritage (or, to put it in its nearest English equivalent terms, that it had become part of the realty). The subject was the vessel itself (described in the valuation roll as "Club") and no question arose, as it does in the present case, of treating the vessel as rateable on the basis that it was moveable property so closely associated with the heritage as to form with it part of a rateable subject. The sole question was whether the vessel itself had become heritage. The case is therefore of no assistance in applying the principle laid down in Field Place Caravan Park.
25. Applying this principle, therefore, whether the vessel is rateable depends on whether it is placed on a piece of land and enjoyed with it in such circumstances and with such a degree of permanence that the chattel with the land can together be regarded as one unit of occupation. "Enjoyed with" the land means no more than that the chattel, although not forming part of the realty, must have some real connection with the land on which it rests (see Ryan Industrial Fuels Ltd v Morgan (VO) [1965] 1 WLR 347, per Salmon LJ at 358).
26. The fact that the vessel is floating does not in my judgment prevent it from forming part of a hereditament. Mr Scrafton accepts that this is so and does not suggest that the Tribunal was wrong in the Yard Arm Club case in treating the Hispaniola as part of a hereditament extending upwards from the bed of the river. The crucial point, on his argument, is that the vessel here is not attached fore and aft to dolphins and anchors in the bed of a river but is secured to moorings on the dock side. This distinction does not seem to me to be significant.
27. The relevant circumstances are in my judgment these. Although it is a vessel, the essential function of the Lotus is to remain stationary and attached to the dock side to provide a static, land-based facility as a restaurant. Apart from the fact that it floats, it is not designed for movement and has no means of propulsion. It has in fact remained stationary for over 6 years with the exception of the occasions, twice a year for a few hours, when it is towed across the dock for maintenance purposes. It enjoys all main services. Its presence excludes the potential use for a similar purpose by anyone else of the dock bed beneath it or the dock side alongside it. It is enjoyed with the dock bed and the dock side in that it is supported by the dock bed in conjunction with the water above it and it is secured to moorings on the dock side.
28. In these circumstances I am satisfied that the valuation officer is correct in identifying as a rateable hereditament the dock bed, the floating restaurant and its moorings. Physically the hereditament consists in my view of the dock bed immediately beneath the vessel, the space above it that is filled with water, the vessel itself and its moorings on the dock side. The fact that there is water immediately beneath the vessel is only of relevance, it seems to me, to the extent that the vessel could become more mobile if it were not secured. But it is in fact secured. The demise in the lease is of an area of water and not the dock bed, and the water itself is not land. The water, however, does in fact provide the intermediate means of support and is the medium through which the vessel is connected to the dock bed. The occupation of the Respondents fulfils all the ingredients of rateable occupation. Actual use is made of the dock bed for the support of the vessel through the medium of the water above it; the occupation is plainly of benefit to the Respondents; in view of the fact that the vessel is continuously secured in position (apart from the few hours when it is moved for maintenance) and has remained in the same position for a number of years, the occupation is undoubtedly permanent; and in my judgment, it is also exclusive. The harbour authority can no doubt be said to use all the dock bed and the space above it, including the area beneath the vessel, in that it controls the volume of water within the dock, but this does not interfere with the use that the Respondents make of the dock bed, which is exclusive for their purposes, and, in my view, is plainly paramount.
29. The appeal is allowed. The hereditament must be entered in the list as "Dock Bed, Floating Restaurant, Moorings and Premises", 38 Limeharbour, London E14 9RM at Rateable Value £67,500.
30. What I have said so far concludes my determination of the substantive issue in this case. It will take effect as a decision when the question of costs is decided and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and Order 61 rule 1(1) of the Civil Procedure Rules will come into operation. The parties are invited to make submissions as to the costs of this reference and a letter accompanying this decision sets out the procedure for submissions in writing.

Dated 18 February 2000

(Signed) George Bartlett QC

ADDENDUM ON COSTS

The Appellant asks for his costs. The Respondents, while not opposing the generality of the application, say that any amount awarded should be reduced to reflect, on the one hand, what they claim were additional costs unnecessarily imposed on themselves by delay on the part of the Appellant in agreeing a statement of facts and, on the other, costs unnecessarily incurred by the Appellant in preparing evidence which in the event was not given. It does not appear to me that the delay in agreeing a statement of facts was more the fault of the Appellant than of the Respondents, and I do not think that, in the light of the delay in agreeing the statement and the issues in the appeal it was unreasonable for the Appellant to have prepared his witness statement and supplementary witness statement. The Respondents will pay the Appellant's costs. Such costs, if not agreed, will be the subject of a detailed assessment on the standard basis by the Registrar of the Lands Tribunal in accordance with Rule 44.4 and Rule 44.7 of the Civil Procedure Rules. The procedure laid down in Rule 52 of the Lands Tribunal Rules 1996 will apply to such detailed assessment.

DATED

George Bartlett QC, President