Scottish Court of Session Decisions

The respondents Joseph Johnston & Sons Limited are the proprietors of certain fishings on the River North Esk at Morphie and Pondage, Montrose, and of an adjoining river bank. On this bank there is a fishing "bothy" - a substantial brick edifice built in 1988. The Assessor entered the bothy in the Valuation Roll, at a rateable value of £760. The proprietors appealed, contending that the bothy was ancillary to the fishings, with bothy and fishings forming a unum quid. The submission was that the effect of section 151 of the Local Government etc. (Scotland) Act 1994 was to remove this unum quid from the Valuation Roll, and that accordingly the entry for the bothy should be excluded from the Roll. The Angus Committee of the Tayside Valuation Appeal Panel decided that the entry for the bothy should be deleted from the Valuation Roll. The Assessor now appeals against that decision.

Section 151(1) of the 1994 Act provides that on and after 1 April 1995 "no shootings, deer forests, fishings or fish counters shall be entered in the Valuation Roll." The proprietors accept that the bothy is properly included in the Roll, unless it falls within the scope of this provision. Moreover, it is agreed that if the bothy is properly included in the Roll, the value of £760 is correct.

On behalf of the Assessor, it was submitted that the word "fishings" in section 151(1) of the 1994 Act denoted the incorporeal right of fishing, which constituted a separate estate as a matter of law, and was a known species of "lands and heritages" for the purposes of valuation law. There was no basis for giving it anything other than this normal meaning; and with this normal meaning it did not and could not include corporeal subjects such as the bothy.

In support of this simple proposition, counsel for the Assessor referred to the historical background of valuation legislation affecting fishings. Section 42 of the Lands Valuation (Scotland) Act 1854 defined "lands and heritages" as extending to and including "all lands, houses, shootings and deer forests, fishings, woods, copse and underwood from which revenue is actually derived...", in which context it was clear that the fishings were the incorporeal right of fishing. Section 7 of the Local Government and Miscellaneous Financial Provisions (Scotland) Act, 1958, drew a clear distinction between incorporeal "rights of salmon fishing" (certain categories of which obtained relief by being deemed to be agricultural lands and heritages) and any "dwelling-houses, bothies, or other corporeal lands and heritages, whether occupied or used in connection with rights of salmon fishing...or not", which were expressly excluded from this relief, and were expressly to be treated as lands and heritages which were neither industrial nor agricultural. Section 22A of the Valuation and Rating (Scotland) Act 1956, which was enacted by the Local Government Finance Act 1988, section 6, again referred to "rights of salmon fishing", and provided further relief by enacting that no rates were to be levied in respect of lands and heritages which were rights of salmon fishing of certain described kinds. Section 151 of the 1994 Act was to be seen as a further step in this process of relieving the incorporeal right of fishing from the burden of rates, and as continuing the clear distinction between such incorporeal rights and corporeal lands and heritages which might be occupied or used in connection with such incorporeal rights. It was particularly to be noted that section 151(1) referred expressly to "fish counters", which meant certain weirs and other structures primarily used for the purpose of counting fish: these were corporeal, and it was clear that if any other corporeal lands and heritages had been intended to fall within the scope of section 151(1), they would likewise have been mentioned. Section 151(2) (like the proviso to section 7(2) of the 1958 Act) provided that nothing in subsection (1) should affect any right of a District Salmon Fishery Board to require the Assessor to value and enter "any rights of salmon fishing" in the Valuation Roll for the purposes of fishery assessments only. That again was clearly a specific procedure, relating to the incorporeal rights, separate from any related corporeal lands and heritages. While section 7 of the 1958 Act and section 22A of the 1956 Act had been repealed, the terms employed in these sections, and the distinctions which they drew, were of assistance in demonstrating that section 151(1) was concerned with fishings in their ordinary incorporeal sense, without any corporeal elements or adjuncts. Counsel for the Assessor acknowledged that fishings, in this sense of the incorporeal right to fish, carried certain ancillary rights. Reference was made to the Stair Encyclopaedia, volume 18, and in particular paragraphs 327 and 328. The ancillary rights included a right to make such use of the banks adjacent to the waters as was reasonably required for conduct of the fishing. In addition to use of the land for access, certain other ancillary use was included, but the principle had been held to exclude the construction of a hut - Mackinnon v. Ellis [1878] 5 R. 832. Corporeal subjects such as the bothy in the present case were a quite different matter from such ancillary rights, and could not be regarded as comprised in the incorporeal rights in question.

Counsel for the Assessor relied further upon the evident intention of the enactment of section 151 under reference to certain passages in Hansard and in Ryde on Rating. We do not, however, find it necessary to refer further to these.

Against this background, counsel for the appellant submitted that the argument to the effect that the bothy and fishings were an unum quid was effectively irrelevant. It was the incorporeal fishings rather than any corporeal lands and heritages which had to be excluded from the Roll in terms of section 151(1). These having been excluded, the bothy remained, and must be entered and valued. The particular facts of this case, as to the terms upon which the fishings were let and the use that was made of the bothy, took one nowhere. The proprietors were the occupiers of the bothy, and while the findings in fact included various details as to the use of the bothy in connection with fishing, they also included a finding that fishing could be carried on without such accommodation. The fishings and the bothy were not therefore inextricable, the one from the other, and whatever use the hypothetical tenant of the bothy might allow to those in occupation of the fishings, the bothy remained lands and heritages which required to enter the Roll, and required to be valued. In this case, no problem as to valuation arose, the figure being agreed. The reasons given by the Committee were short and wrong. They said that "the rent paid was for the fishings with facilities including use of the bothy". That had no adequate basis in the findings of fact, but in any event did not afford a reason for excluding the bothy from the Roll, either in terms of section 151(1) or otherwise. The Committee referred to certain changes in 1990 (from net to rod fishing and from a commercial to a sporting basis), and to certain evidence indicating that if the fishings had not been operated on a commercial basis the bothy "would never have been entered in the Valuation Roll". But such matters again took one nowhere: the bothy was not within the exclusion provided by section 151(1), and therefore must be entered and valued. Finally, the Committee had referred to section 151(1) and the provision that "fishings" should not be entered in the Roll. But that simply begged the question as to whether "fishings" included or could include the bothy. The decision should be reversed and the entry in the Roll restored.

On behalf of the proprietors, counsel submitted that in the context of section 151(1) the word "fishings" should be read as including "all buildings and pertinents thereof". In section 42 of the 1854 Act, at the end of the list of subjects which the expression "lands and heritages" should extend to and include, these words were used, and references in subsequent legislation to fishings should be read as thus including pertinents - which might be a building such as the bothy. While the relief granted by section 7(2) of the 1958 Act was evidently limited to the incorporeal rights of salmon fishing, the express exclusion of bothies and other corporeal lands and heritages in terms of subsection (3), and their express treatment, in terms of subsection (4) as neither industrial nor agricultural, indicated that but for these express provisions, bothies and the like, used in connection with rights of salmon fishing, would have been regarded as "rights of salmon fishing" in terms of subsection (2), being pertinents or ancillary.

On the basis that a pertinent could be a building such as the bothy, it was submitted that one must look at the facts of this case, to see whether this bothy was such a pertinent of the fishings. The Committee said that the rent paid was for the fishings with facilities including use of the bothy; and while this should perhaps have appeared expressly in the findings of fact, the findings of fact revealed that this was a justified conclusion. There was a finding that no separate rental was paid by the fishers who used the bothy while fishing the beat. There was a finding that differing fishing beats attract huts of differing qualities "with top quality fishing beats tending to have huts of a superior quality." It was apparent from Assessor for Dunbartonshire v. William Baird & Company Limited 1926 S.C. 479 that where the value of a facility was included in the rent of subjects, no separate and additional valuation would be appropriate for that facility on its own: in the present case it was plain that the value of the fishings included the value of the bothy, and the former being taken out of the Roll by section 151(1), one must proceed upon the basis that the bothy and its value could not appropriately be entered, as if separate, in the Roll. Counsel also referred to Assessor for Lothian v. Lowland Leisure Limited 1990 S.L.T. 353, and in particular to page 357K, showing that "pertinents" might consist of certain privileges which were enjoyed by the occupier of specific lands and heritages. It was not suggested that those in enjoyment of the fishings were in occupation of the bothy, or enjoyed a tenancy of it under their fishing lease. Nonetheless, the bothy was, in terms of the findings, "entirely for the use and management of the fishings", "exclusively used by fishermen and their spouses and the ghillie during the salmon season", with the ghillie being "the only person who uses the property throughout the whole of the calendar year, in connection with his duties and management of fishings." In this factual context, it was open to the Committee to regard the subjects as a pertinent of the fishings, and thus excluded from the Roll with them. That was effectively what they had done. The appeal should be refused.

We are satisfied that the submissions advanced on behalf of the Assessor are sound, and that the reference to "fishings" in section 151(1) of the 1994 Act is a reference to incorporeal rights of fishing. Such ancillary rights as are inherent, in terms of the common law, in this incorporeal right of fishing need no mention, and are in our opinion covered by the expression "fishings". Such ancillary rights can be described as "pertinents", but again, separate reference to such pertinents does not appear to us to be necessary, a reference to "fishings" being sufficient to cover such pertinents. However, a reference to "fishings" in a statute, and in particular the use of that word in section 151(1) of the 1994 Act cannot in our opinion be read as covering other rights which, in some particular case, may have been conferred upon the particular proprietor or tenant of particular fishings, even if, as between the parties, the rights so conferred might be described as ancillary, or indeed as pertinents of the primary right. More particularly, we are quite unable to read the reference to "fishings" in section 151(1) as including corporeal lands and heritages such as a bothy. We do not see the point as requiring elaboration. For the reasons advanced by the Assessor the appeal is allowed and the entry restored.