In this section
Paragraph 9 of Schedule 5 LGFA 1988, as amended by paragraph 37(3) of Schedule 5 to LGHA 1989, details how fish farms may be exempt from rating. As in the case of terrestrial agriculture, the requirements are strict and each element needs to be satisfied before exemption can be granted.
Paragraph 9(1) states:
"A hereditament is exempt to the extent that it consists of any of the following-
- land used solely for or in connection with fish farming;
- buildings (other than dwellings) so used."
The phrase "to the extent that" is a form of words that is common to all the exemption classes within Sch 5. Exemption may now be available to hereditaments used for fish farming within larger hereditaments that are used for other (non-exempt) purposes. Generally, the words should be interpreted in a spatial context, although they can be construed in terms of time. Such a temporal test will only apply where the hereditament qualifies on certain days, but not on others (see also the provisions of s.42 LGFA 1988), and also in relation to s.67(5) LGFA 1988 where exemption falls to be determined "at the end of the day".
In this particular context, "land", means any land so used. This is in distinct contrast to the tight definitions applied to "agricultural land" by paragraph 2 - see paragraph 3 of this Part (above). It may also be taken to include land covered by water and any plant that is not a "building", eg tanks.
Paragraph 9(3) allows the term "building" to include a separate part of a building. The guidance provided at paragraph 5.1.1 of Part D respect of "agricultural buildings" should be similarly applied in the context of fish farms.
The buildings used for fish farming do not need to satisfy a "two hectare rule" as agricultural livestock buildings are required to do under paragraph 5(4) of Schedule 5. Moreover, they are not subject to the "occupied together" and "in connection with" tests that the more traditional agricultural buildings are required to satisfy.
Paragraph 9(4) provides the following definition:
""Fish farming” means the breeding or rearing of fish, or the cultivation of shellfish, for the purpose of (or for purposes which include) transferring them to other waters or producing food for human consumption."
It should be noted that food production is limited to that intended for human consumption, rather than as animal feed.
Paragraph 9(4A), inserted by LGHA 1989, imports the following restriction on this definition, viz:
"But an activity does not constitute fish farming if the fish or shellfish are or include fish or shellfish which-
- are purely ornamental, or
- are bred, reared or cultivated for exhibition."
Accordingly, care needs to be taken to determine the ultimate purposes for which the fish are being bred or reared during the inspection of such premises.
Paragraph 9(5) clarifies the meaning of the term "shellfish" in the following way:
""Shellfish” includes crustaceans and molluscs of any description."
During a parliamentary debate shortly after LGFA 1988 was passed, the Minister made a statement to the House of Commons that, as this definition includes the phrase "molluscs of any description", and as land-based snails are molluscs, then snail farming was also included within this definition.
Paragraph 9(2) requires a time test to be made, similar to that found in paragraph 8(3) in respect of livestock buildings, viz:
"In determining whether land or a building used for or in connection with fish farming is solely so used, no account shall be taken of any time during which it is used in any other way, if that time does not amount to a substantial part of the time during which the land or building is used."
Buildings used for the primary marketing operations of killing, gutting, cleaning, packing or freezing should be considered as being within the scope of the words "used solely for or in connection with fish farming" in paragraph 9(1)(a) and treated as exempt.
However buildings used for secondary marketing operations, such as long term cold storage, smoking, filleting and the preparation of fish products, are not considered to be within the "used solely……" requirement and are therefore rateable. For the same reason, any building used as a fish farm shop, or restaurant, or land used as a customers' car park is rateable.