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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scottish Nuclear Ltd v Assessor For Lanarkshire [1999] ScotCS 306 (23 December 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/306.html
Cite as: [1999] ScotCS 306
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LANDS VALUATION APPEAL COURT
|
Lord Prosser Lord Coulsfield Lord Gill
|
0/2/19/98
OPINION OF LORD PROSSER
in
APPEAL
by
STATED CASE
by
SCOTTISH NUCLEAR LIMITED Appellants;
against
THE ASSESSOR FOR LANARKSHIRE Respondent:
_______
|
Appellant: Haddow, QC
Respondent: Wright, QC; Simpson & Marwick,WS
23 December 1999
This appeal relates to subjects at 3 Redwood Crescent, East Kilbride, which were entered in the Valuation Roll for the year 1995/96 with a net annual value and rateable value of £907,000. The description of the subjects was "Office". The proprietors, Scottish Nuclear Limited, appealed to the Valuation Appeal Committee against this entry, contending that there should be no entry in the Valuation Roll for the subjects of appeal. The Assessor contended for a figure of net annual value and rateable value of £872,500. It was not disputed by the appellants that in the event of the entry being upheld, this would be the appropriate value. The appeal was heard by the Committee on 3 July 1997, and on 10 September 1997 they issued their decision, upholding the entry at the undisputed value. In this appeal against that decision, the appellants contend, as they did before the Committee, that the entry should be removed from the Roll.
Put shortly, the issue between the parties relates to the interpretation and application of the Electricity Generation Lands (Rateable Values)(Scotland) Order 1995 (S.I. No. 369), and in particular Article 3(1) of that Order.
Section 6(1) of the Local Government (Scotland) Act 1975 empowers the Secretary of State to make provision for valuation by formula of certain lands and heritages. The 1995 Order contains such provisions in relation to certain lands and heritages occupied by Scottish Power plc, Scottish Hydro-Electric plc or the appellants, Scottish Nuclear Limited. Article 3(1) provides that a described class of lands and heritages is prescribed for the purposes of section 6(1) of the 1975 Act. Article 5 prescribes an aggregate amount of the rateable values of the prescribed class of lands and heritages for the purposes of section 6(1), the amount for the financial year 1995/96 being £98,700,037. Article 6 apportions this amount between the three companies, £36,300,000 being apportioned in respect of lands and heritages occupied by the appellants. And Schedule 1, in terms of Article 7(1), apportions this amount between local authorities, £18,513,000 being apportioned to East Lothian and £17,787,000 being apportioned to Cunninghame - together making up the whole amount apportioned in respect of the appellants' lands and heritages. The Order contains similar provisions for the other two companies, and appropriate machinery for computing aggregate amounts and apportionments for the four following financial years, up to and including 1999/2000.
The appellants own and operate two nuclear generating stations, at Torness in East Lothian and at Hunterston in Cunninghame. It is not disputed that the amounts apportioned to East Lothian and Cunninghame in terms of Schedule 1 represent the rateable values of these two subjects; and that the provisions which lay down and apportion aggregate amounts of rateable values do not take into account the present subjects of appeal or their value, in any way. If, upon a correct interpretation and application of Article 3, the present subjects of appeal do not fall within the prescribed class, they would correctly be left out of account in the succeeding provisions of the Order, and would require to be valued and enter the Roll in the normal way. If, on the other hand, these subjects are within the prescribed class of lands and heritages in terms of Article 3(1), it is not suggested that they could be valued, or enter the Roll, in the ordinary way: as subjects within the prescribed class, the amount of their rateable value would be part of the "aggregate amount of the rateable values of the prescribed class", effected in the prescribed figure for 1995/96 and included in the aggregate amount computed for subsequent years.
Article 3(1) of the Order is in the following terms:
"3(1) The following class of lands and heritages is hereby prescribed for the purposes of section 6(1) of the 1975 Act, namely any lands and heritages in Scotland (other than lands and heritages referred to in paragraph (2) below) occupied by a Company and wholly or mainly used for the purposes of the generation of electricity or for ancillary purposes."
Paragraph (2) is not in point. The question is whether the subjects of appeal are "wholly or mainly used for the purposes of the generation of electricity or for ancillary purposes". The decision of the Valuation Appeal Committee is that they are not.
As I have indicated, issues arise as to both the correct interpretation of Article 3(1) and its application (correctly interpreted) to the facts established in this particular case. The factual position raises various issues; but at this stage it is to be noted that the description of the subjects in the Valuation Roll as "Office" is not said to be wrong, and that while a number of identifiably different things are done there, the premises can for convenience be quite simply described as the appellants' Head Office.
In putting forward their submissions as to the true meaning of Article 3(1), counsel for both the appellants and the respondent relied to some extent on both other articles of the 1995 Order, and the provisions of certain other Orders which it has replaced. I shall return to these matters. But at this stage, I think it convenient to comment upon certain of the words used in Article 3(1) itself.
(1) "Wholly or mainly". This phrase may of course be of crucial importance, but it does not appear to me that it is in any way technical or a term of art, and I do not think that it is helpful to translate it into other words of similar meaning.
(2) "Used for the purposes of...". The word "purposes" can of course, in some contexts, direct the attention to broad or underlying or ultimate purposes, distinct from, and perhaps in sharp contrast to, specific or objective acts. But in the context of valuation, the word does not (at least normally) bring in any of these wider considerations. When the expression "used for the purposes of" is followed by a descriptive term such as "a factory", the expression is simply equivalent to the word "as", so that one is concerned simply with discovering actual, factual use. The dicta of Lord Dunedin in Moon 1931 A.C. 151 at 166 are in my opinion entirely in point, and it was not suggested otherwise, notwithstanding that in Article 3(1) the expression is followed not by a description of the premises where an activity is carried on, but by a description of the activity itself - "the generation of electricity". One is concerned with the actual, factual use of subjects.
(3) "The generation of electricity". While there is no suggestion that there was any actual generation of electricity at the subjects here in question, the appellants' generation of electricity being of course carried out at Torness and Hunterston, I think it worth saying that in my opinion the whole expression "used for the purposes of the generation of electricity" must be taken (in the light of what I have said at (2) above) as meaning something like "used for actual generation of electricity" and as not extending, for example, to activities or processes which are not themselves part of generation, even if quite integrally connected to generation, or having some evident relationship with, say, future activity of the same kind. To cover such additional aspects of use or activities, additional words would be required.
(4) "Or for ancillary purposes". This is the crucial expression in the present case: unless the subjects are wholly or mainly used "for ancillary purposes", they will not fall within the prescribed class. The word "purposes" must in my opinion have the same meaning here, as it has when used earlier in the same sentence. So far as this word goes, therefore, one is concerned with what is actually being done on the subjects, and nothing wider. It is however important to observe that in this context, there is no requirement that what is being done must fall into any described category of activity or use, such as "factory", or "office", or "generation of electricity". In such descriptive terms, there is apparently no limitation upon what the actual use of the subjects may be. Any descriptive category will qualify: the limitation lies in the relationship which is required between any actual use of the subjects and the generation of electricity there or (as in this case) elsewhere. The actual use must be (wholly or mainly) "ancillary" to that (actual) generation of electricity elsewhere. The word "ancillary", although familiar in the context of valuation, does not appear to me to be a term of art. I would agree with Sheriff Principal O'Brien in Royal Blind Asylum and School v. Lothian Regional Council 1982 S.L.T. (Sh. Ct.) 89 at page 91, that while the word no doubt once had a meaning akin to its Latin derivation, it has a wider meaning in modern usage. The width of its meaning is perhaps best tested in specific circumstances; but like the Sheriff in the Blind Asylum case (1981 S.L.T. 109 at page 112) I would note not only the primary dictionary meaning of "subservient, subordinate", but the further phrase which the Sheriff quotes from the dictionary, "rather ancillary than essential". I would respectfully agree with his Lordship's comment that "it may well be said therefore that a particular use which is a critical element in the paramount use is part of that paramount use, whereas an ancillary use is one which directly assists or supplements the paramount use but is not essential thereto".
Having regard to these various considerations, and the judicial observations which I have referred to or quoted, the concluding part of Article 3(1) of the Order perhaps means this: "wholly or mainly used for actual generation of electricity or for activities which are merely ancillary thereto, assisting or supplementing such generation".
That seems to me to be at least a possible meaning of this passage. In the light of the authorities, I am disposed to regard it as the clear meaning. If the meaning of a statutory provision is clear, there will be no need to look elsewhere for assistance in its interpretation. Nonetheless, it is right to note the context and background which were said to assist interpretation.
First, there are the succeeding provisions of the Order itself. The fact that no account is taken of these subjects, or their value, in these succeeding provisions was said (rightly in my view) to indicate that these provisions were made upon the understanding that these subjects did not fall within the prescribed class in terms of Article 3(1). If that was the understanding, it showed the intended meaning of Article 3(1): it was not intended to include these subjects. If it could be given a meaning which was consistent with that intention, then it should be given that meaning rather than any wider possible meaning which would bring the subjects within its scope. Such an argument would not in my opinion be valid if Article 3(1) had been the result of one legislative Act, with the succeeding provisions being enacted subsequently in some separate Order. Such a subsequent Order might simply proceed upon a misunderstanding of the earlier one, and could not demonstrate the intention of the original definition. But the argument is in my opinion valid when one finds all the provisions within the one order: in such a situation, the intended meaning of Article 3(1) is properly to be discovered by reading the Order in its entirety, and I am satisfied that while of course Article 3(1) cannot be given a meaning which it will not bear, it is appropriate, if there are competing meanings, to adopt that which leaves these subjects out of the prescribed class, if that is possible. I shall come to the question of applying the Article to these subjects; but if the meaning which I have already suggested is not clear in itself, it would be appropriate to adopt it, if it achieved this exclusion.
It was also suggested that the interpretation of the 1995 Order, and in particular Article 3(1), might be assisted by reference to certain earlier Orders. The Scottish Nuclear Limited (Rateable Values)(Scotland) Order 1994 (S.I. No. 2077) was a predecessor of the 1995 Order. As its name indicates, it was not concerned with Scottish Power plc or Scottish Hydro-Electric plc, but only with the appellants. Article 3(1) of the 1994 Order, like Article 3(1) of the 1995 Order, prescribed a class of lands and heritages for the purposes of section 6(1) of the 1975 Act, defining the class as any lands and heritages in Scotland "other than the lands and heritages mentioned in paragraph (2) below", occupied by the company "and wholly or mainly used for the purposes of the generation, transmission, or supply of electricity or for ancillary purposes". Article 3(2) of the 1994 Order (unlike Article 3(2) of the 1995 Order) included among the lands and heritages which were excepted from the prescribed class "(a) any lands and heritages consisting of or comprising premises used wholly or mainly...(ii) as office premises where those premises are not situated on operational land of the company...". The express exclusion of office premises "not situated on operational land" in the 1994 Order was said to suggest that there was no intention in the 1995 Order, which lacked such an express exclusion, to take such office premises out of the prescribed class. If Article 3(1) had alternative meanings, this would suggest that a meaning should be adopted which left such office premises within the prescribed class. It was also to be noted that the prescribed class in the 1994 Order was wider than that in the 1995 Order: subjects wholly or mainly used for transmission or supply of electricity fell within the prescribed class in the earlier Order, whereas the prescribed class in the 1995 Order was concerned only with generation. It is clear that the 1995 Order effected a number of changes - in particular, bringing the three companies together to be dealt with in one order in relation to generation of electricity. While I acknowledge that "office premises" are evidently there conceived of as a type of lands and heritages which might, but for the exception, fall within the overall definition of the prescribed class, it does not seem to me that the terms of the 1994 Order, or the departure from them in the 1995 Order, affords any real assistance in the interpretation of the latter.
On the issue of interpretation, it appears to me that the meaning which I have already suggested is indeed that which Article 3(1), correctly understood, bears.
In considering what I would call the "actual" use or uses of the subjects, it is undisputed that (with or without the words "wholly or mainly") the actual use of the subjects is not generating electricity. Equally, at least now, and again I think regardless of the words "wholly or mainly", it is undisputed that the overall use of the subjects is correctly described as office use, although of course differing kinds of office use can be identified. If the question was merely one of identifying the actual use or uses of the subjects, there would be no problem. Unfortunately, however, the Committee seem to me to have thought not merely that identification of the uses as office uses was correct (and for what it may be worth, would be inconsistent with and exclude any question of finding that the premises were wholly or mainly used for generating electricity) but that this categorisation of the subjects as offices also ruled out the possibility that the subjects might be wholly or mainly used for purposes ancillary to the generation of electricity. But as I have indicated, the word "ancillary" takes one into an area quite separate from that of identifying or describing uses. It raises the question of the relationship between one identified use and another. There is no reason why the "office" use of subjects should not be ancillary to the "generating" use of other subjects. The Committee seem to me to have founded their decision upon a false antithesis, and thus not to have considered, in the correct way whether the use or uses which they identified as office uses of the subjects were also uses ancillary to generating uses.
Given that error or omission on the part of the Committee, in dealing with the crucial question of ancillary use, I have come to the conclusion that we are driven to remitting the matter back to them. Questions as to the relationship between differing uses are essentially questions for assessment by the Committee, as are questions of identifying the actual use or uses of subjects. Moreover, the presence of the words "wholly or mainly" inevitably raises issues both of the categorisation of actual uses, and of the relationship between uses. I was initially disposed to think that it might be possible nonetheless for this court to dispose of the matter: upon the view which I have taken as to the true meaning of Article 3(1) of the 1995 Order, I am not persuaded by the very broad and simple argument advanced on behalf of the appellants, to the effect that the company only exists in order to generate electricity, and that therefore anything the company does, other than actual generation of electricity, must be seen as ancillary thereto. In my opinion, uses of the subjects can only be regarded as ancillary, for the purposes of Article 3(1), if their relationship to the generation of electricity is not merely a relationship to such generation in general, but is a relationship with the actual generation being carried on at Torness or Hunterston. Moreover, it does not appear to me, at least in this context, that most forms of Head Office use are necessarily to be regarded as ancillary to generating electricity: functions of command and direction, organisation and management could in my opinion be distinguished from both the "actual" generating of electricity on the one hand, and the inessential or subservient and supportive uses which in this context appear to me to be "ancillary", on the other. This being a Head Office, I find it difficult to see those uses of the subjects which can truly be seen as merely supportive of what is actually going on at Hunterston and Torness as the main uses of the subjects. There is, however, quite a variety of use at the subjects, and I have come to the conclusion that we would be usurping the function of the Committee if we were to hold that any reasonable Committee must inevitably have concluded that these subjects did not fall within the prescribed class. I would therefore remit the case to the Committee to make further or different findings in fact and to provide us with a further note of their reasoning, if so advised, in order that we may deal with the matter on a proper basis.
LANDS VALUATION APPEAL COURT
0/2/19/98
|
Lord Prosser Lord Coulsfield Lord Gill
|
OPINION OF LORD COULSFIELD
in
APPEAL
by
STATED CASE
by
SCOTTISH NUCLEAR LIMITED Appellants;
against
THE ASSESSOR FOR LANARKSHIRE Respondent:
_______
|
Appellant: Haddow, QC
Respondent: Wright, QC; Simpson & Marwick,WS
23 December 1999
I agree that, for the reasons given by your Lordship and Lord Gill, this case should be remitted to the Committee to reconsider.
LANDS VALUATION APPEAL COURT
0/2/19/98
|
Lord Prosser Lord Coulsfield Lord Gill
|
OPINION OF LORD GILL
in
APPEAL
by
STATED CASE
by SCOTTISH NUCLEAR LIMITED Appellant;
against THE ASSESSOR FOR LANARKSHIRE
Respondent:
_______
|
Appellant: Haddow, QC
Respondent: Wright, QC; Simpson & Marwick,WS
23 December 1999
The Assessor for Lanarkshire Joint Valuation Board made an entry in the Valuation Roll for the year 1995-1996 in respect of the appellant's head office at Redwood Crescent, Peel Park, East Kilbride. In the entry the subjects were described as "Office" and entered at a net annual value and rateable value of £907,000.
The appellant appealed to the Valuation Appeal Committee on the ground that the subjects ought not to have been entered in the Roll. Thereafter the parties agreed that if the entry was correctly made the subjects should be valued at £872,500.
The Valuation Appeal Committee found in favour of the Assessor. The appellant has appealed by Stated Case on the ground that the Committee erred in law in deciding as it did.
This appeal turns on the interpretation of article 3(1) of the Electricity Generation Lands (Rateable Values) (Scotland) Order 1995 (SI No. 369). The Order provides for the valuation in the financial years 1995-96 to 1999-2000 of certain lands and heritages occupied by the three Scottish electricity generating companies. The lands and heritages are referred to as the "prescribed class" (art 2(1)). They are to be valued in the relevant years by a formula valuation as provided for by section 6(1) of the Local Government (Scotland) Act 1975.
Article 5 of the 1995 Order prescribes that the aggregate amount of the rateable values of the prescribed class of lands and heritages for the financial year 1995-96 shall be a specified sum and that in each of the following four financial years the aggregate amount shall be ascertained by adding together the amounts apportioned in respect of the lands and heritages within that class occupied by each company for the year in question. Articles 6 and 7 provide for the apportionment by formula of the aggregate amount of the rateable values among the three companies and among the relevant local authorities in the same years.
The appellant's two nuclear generating stations, at Torness and Hunterston, are situated within the local authority areas of East Lothian and Cunninghame respectively. Schedule 1 to the Order provides that the rateable values of the prescribed class of lands and heritages occupied by the appellant shall be apportioned between the district councils for those areas (cf. art. 7(1)(c)).
This case raises a question as to the definition of the prescribed class of lands and heritages to which the provisions of the Order apply. Article 3(1) provides as follows:
"3.-(1) The following class of lands and heritages is hereby prescribed for the purposes of section 6(1) of the 1975 Act, namely any lands and heritages in Scotland (other than lands and heritages referred to in paragraph (2) below) occupied by a Company and wholly or mainly used for the purposes of the generation of electricity or for ancillary purposes."
The short question is whether the appellant's head office premises are "wholly or mainly used for the purposes of the generation of electricity or for ancillary purposes." The Valuation Appeal Committee has held that they are not so used. The consequence of that decision is that the premises must be entered in the roll and valued in the normal way.
The 1995 Order took a new approach to the valuation of lands and heritages occupied by the electricity generating companies. Before 1995 each of the generating companies was subject to its own Order. In the case of the appellant the last such Order was the Scottish Nuclear Limited (Rateable Values) (Scotland) Order 1994 (SI No. 2077). That Order prescribed the class of lands and heritages occupied by the company that were to be valued by formula for the financial year 1994-1995. It prescribed the aggregate amount of the rateable values of the prescribed class of lands and heritages. Article 6 and the Schedule to the Order provided that the aggregate amount of the rateable values was to be apportioned between the district councils of East Lothian and Cunninghame.
The 1994 Order differed significantly from the 1995 Order in the definition of the prescribed class. Article 3 of the 1994 Order provided inter alia as follows:
"3.-(1) The following class of lands and heritages is hereby prescribed for the purposes of section 6(1) of the 1975 Act, namely any lands and heritages in Scotland (other than the lands and heritages mentioned in paragraph (2) below) occupied by the Company and wholly or mainly used for the purposes of the generation, transmission, or supply of electricity or for ancillary purposes.
(2) The lands and heritages mentioned in this paragraph are -
(a) any lands and heritages consisting of or comprising premises used wholly or mainly -
(i) as a shop or other place for the sale, display or demonstration of apparatus or accessories for use by consumers of electricity (any use for the receipt of payments for the use of electricity being disregarded); or
(ii) as office premises where those premises are not situated on operational land of the Company; or
(iii) for both of the foregoing purposes; ... "
In the 1994 Order office premises of the company not situated on operational land were expressly excluded from the prescribed class of lands and heritages, and therefore entered the roll. But in the 1995 Order that express exclusion was omitted. The appellants contend that the effect of this change is that the office premises of the company do not now enter the roll if they are wholly or mainly used for the ancillary purposes referred to in article 3(1) of the 1995 Order. If that is correct, the consequence will be that if the use of the premises satisfies that test, the local authority in whose area the premises are situated, namely South Lanarkshire Council (formerly in the financial year 1995-1996 East Kilbride District Council) will receive no rates income from the premises because that authority is not one of the recipient authorities between which the aggregate rateable values are apportioned under Schedule 1 to the 1995 Order.
In the course of the argument it was suggested to us that this consequence may have occurred per incuriam. That seems to me to be unlikely. It is obvious that some administration is necessary to support the generation process. It may be that the appellant had good reason to locate that administration off-site. It would seem reasonable that the office premises used for such administration should not be subject to conventional valuation if the premises are wholly or mainly used for that purpose. It is less obvious why in that event the local authority for the area should receive no rates income from such premises.
Counsel for the Assessor described the result of the appellant's proposed interpretation as anomalous. He suggested that we should interpret the 1995 Order in a way that avoids that result. I do not find this line of argument helpful. In my view if article 3(1) of the 1995 Order yields a clear meaning, that is the meaning on which we must proceed, however anomalous the consequences may seem.
We have been referred to numerous cases under various statutes in which the question was whether premises were used for particular purposes (e.g. Moon v LCC, [1931] AC 151; Ass. for Glasgow v Dunfermline Building Society, 1962 SC 539; Ass. for Edinburgh v South of Scotland Electricity Board, 1969 SC125; 1969 SLT 46; Heriot Watt University v Ass. for Edinburgh, 1998 SC 736) or were wholly or mainly used for particular purposes (North of Scotland Water Authority v Ass. for Highland, etc. Joint Board, Lands Tribunal for Scotland, 24 July 1998, unrepd.) or were used for a purpose that was ancillary to another purpose (e.g. Royal Blind Asylum & School v Lothian Regional Council, 1981 SLT (Sh Ct) 109; 1982 SLT (Sh Ct) 90; East Kilbride Sports Club v Ass. for Strathclyde, 1986 SLT 379; Ass. for Lothian v Edinburgh District Council, 1989 SC 267). I have not found these cases helpful, because in each of them the relevant statutory wording is materially different from the wording that we have to consider in this appeal. I think that these cases may have confused the Committee to some extent.
In my view article 3(1) of the 1995 Order requires the Assessor to consider two questions: (1) are the premises used for purposes that are ancillary to the purposes of the generation of electricity? and (2) if so, are they used wholly or mainly for such purposes? Both are questions of fact and degree.
The Committee has found that the premises are used for purposes such as the ordering of fuel stock for the two generating stations (Finding 8(c)), monitoring of safety at the stations (ibid) and design modification and development (Finding 10). In my view, these are uses for purposes that are ancillary to the purposes of the generation of electricity. So long as the premises are used for such ancillary purposes to a material extent, as is plainly the case, the first question must be answered in the affirmative.
The Committee's decision centres on this first question. The Committee decided that office use was not and could not be ancillary to the purposes of electricity generation. The Committee in substance adopted a submission made on behalf of the Assessor in the following terms:
"The primary way of looking at the matter is that there is clearly just one purpose for the appeal subjects, that is as an office. To try to see the appeal subjects as something ancillary to something which happens elsewhere is totally inconsistent with valuation principle. Looking at what is happening in the appeal subjects you find a head office ... Generally, what is going on within the appeal subjects is office work. Some of it has a relation of generation but looking at the office buildings as a whole the only way in which they can be said to be used for purposes ancillary to the generation of electricity is by a highly artificial and wrong argument (Stated Case, p. 16)."
The Committee took the view that the approach taken in the majority of the cases to which it was referred was to focus on the physical attributes of and the activities being carried on within the subjects, rather than to take a wider approach which included the purposes and overall business activities of the appellants (ibid., pp. 19-20). The ratio of the Committee's decision was as follows:
"Approaching the evidence in this way the Committee were of the clear view that the activities which were being carried out within the appeal subjects at Peel Park were in the main the activities of an office. The appeal subjects were the head office of the appellants. They carried out the functions of a head office of a large company. The Committee accepted that certain activities took place within the appeal subjects which were directly related to the power stations such as the work of the engineers and the drawing office. These were nonetheless activities which were those commonly found in offices. The overriding impression of the appeal subjects looking at them as a whole was something being used as an office rather than something being used for the generation of electricity or ancillary purposes ... (ibid., p. 20)."
In my view the reasoning set out in these words is fallacious. The test in article 3(1) is one of purpose rather than function. The question is not whether the premises are being used for office work. It is whether that use is being made for the specified purposes.
The Committee has held that the office premises are used inter alia for purposes that are "directly related" to the generation of electricity at the appellant's generating stations. On the findings in fact, that is clearly the case. It follows, in my view, that the Committee should have found that, at least in respect of that use, the premises are being used for ancillary purposes within the meaning of article 3.
That finding would have dealt with the first question and enabled the Committee to proceed to a proper consideration of the second. As it is however the Committee, having decided that the generation-related uses of the office premises were not uses for "ancillary purposes", failed to reach the second question.
In my view, the second question was the question on which this case ought to have turned. It was plain on the evidence that the premises were not being "wholly" used for the ancillary purposes. The Committee had therefore to decide whether the premises were being "mainly" so used. It was for the Committee to decide by what criterion that question should be answered and then, with that criterion in mind, to make findings in fact as to the extent of the ancillary uses.
The appellant led evidence on the point, but it appears that the only criterion that it offered to resolve the question was that of the floor-space allocated to the various uses within the premises. It is my impression that that criterion, while not irrelevant, was unlikely, if considered in isolation, to be decisive. But in consequence of the reasoning that I have quoted, which in essence made function the determining characteristic, the Committee did not come to a clear view as to the way in which the "wholly or mainly" question was to be resolved.
Since the Committee has made its findings in fact under an erroneous construction of article 3(1), I think that it would be wrong of us to make our own decision on the second question on the basis of those findings. The appropriate course, in my view, is for us to return the case to the Committee, for a further hearing if need be, so that it may clarify its findings in fact.