Case No. UKUT-24-(LC)

82.We start with the principal submission of the Appellant; namely that the MCO of the Power Station had changed, on the Material Day, to a mothballed power station.83.The starting point, as it seems to us, is to apply the guidance given by Robert Walker LJ in Scottish & Newcastle to the task of identifying the MCO of the Power Station on the Material Day. At [70] Robert Walker LJ confirmed that “the formulation in Fir Mill is on the right lines, even if its precise scope has to be worked out on a case by case basis”. We have quoted the relevant extract from Fir Mill in the previous section of this decision, but we repeat the most material part of the extract, for ease of reference:“The second assumption - and here we accept counsel for the respondents‟ second proposition - is that the mode or category of occupation by the hypothetical tenant must be conceived as the same mode or category as that of the actual occupier. A dwelling-house must be assessed as a dwelling-house; a shop as a shop, but not as any particular kind of shop; a factory as a factory, but not as any particular kind of factory. Some alteration to an hereditament may be, and often is, effected on a change of tenancy. Provided it is not so substantial as to change the mode or category of use, the possibility of making a minor alteration of a non-structural character, which the hypothetical tenant may be assumed to have in mind when making his rental bid, is a factor which may properly be taken into account without doing violence to the statute or to the inference we draw from the authorities.”84.If a dwelling house is to be assessed as a dwelling-house, and a shop as a shop but not any particular kind of shop, and a factory as a factory but not as any particular kind of factory, one might think, at least on a superficial analysis, that the Power Station should simply be assessed as a power station, whether mothballed or active.85.Also, at least as a matter of superficial analysis, one might think that there were good reasons, on the facts of this case, to support this approach. The mothballing of the Power Station did not take place because it was due for demolition, or for conversion to a different kind of premises such as a factory or a set of retail premises. Both the mothballing and the recommissioning (de-mothballing) works were carried out for economic reasons, as market conditions first declined, and then improved. The mothballing works were, and were intended to be reversible, and were reversed when market conditions improved. During the period of long term preservation the Power Station remained available for the resumption of electricity generation, once market conditions had improved to the required degree, and once the recommissioning works had been carried out.86.Mr Wilcox submitted that this superficial analysis was wrong. He pointed out that the PB Report identified two types of mothballing; namely (i) short term mothballing such as might occur on a seasonal basis, in the summer months, when electricity demand is lower, and (ii) long term mothballing, which is what occurred in the present case. While it was common ground between counsel that short term mothballing would not effect a change in the MCO for rating valuation purposes, Mr Wilcox submitted that the same was not true of long term mothballing. In the case of long term mothballing, so Mr Wilcox submitted, there was a change in the mode of occupation. The Power Station ceased to be occupied for the purposes of electricity generation and became occupied for the purposes of long term preservation. 87.This argument requires us to accept that, in the case of power stations which are subject to long term mothballing, the long term mothballing constitutes a change of use which is sufficient to justify the creation of a new category or sub-category of MCO applicable to such power stations, while subject to such long term mothballing. Putting the matter more simply, we are asked to accept that there is a specific category of use, which might be called a sui generis use, encompassing power stations subject to long term mothballing, or long term preservation (to use the language of the PB Report).88.It seems to us that there are a number of difficulties with this line of argument.89.The starting point is that it is difficult to reconcile this degree of categorisation with the formulation in Fir Mill which we have quoted above, as approved in Scottish & Newcastle. If a shop is to be assessed as a shop, but not as any particular kind of shop, and factory is to be assessed as a factory, but not as any particular kind of factory, it becomes difficult to see why a power station which happens, by reason of market conditions, to be subject to long term mothballing, should not be assessed as a power station. It is difficult to see why such a power station should be categorised, for rating purposes, as a particular kind of power station; namely a power station subject to long term mothballing.90.In this context it is instructive to consider what was said by the Upper Tribunal in the case of Hughes (Valuation Officer) v Exeter City Council [2020] UKUT 0007 (LC). The case was concerned with the rateable valuation of the Royal Albert Memorial Museum and Art Gallery in Exeter. The valuation proved to be a difficult exercise. The essential dispute in the case was as the correct valuation method to adopt. The decision is a lengthy one, but for present purposes we can go straight to [205] in the decision, where the Upper Tribunal said this in relation to categories of occupation:“205.The mode or category of occupation as defined by the VTE and the respondent council is itself of a specialised nature and it is necessary to be prudent about introducing further subdivisions. There is a risk of ending up with highly specialised, relatively small groupings of property and the grounds upon which the subdivision is advanced may not be sufficiently clear or coherent. The factors put forward by the valuation officer at para 202(i), (iii) and (iv) above may be found in properties belonging to each of the two sub-categories for which he contends. In our judgment it is more realistic and preferable for the purpose of applying the rating hypothesis in this appeal to recognise that there is a broader, single mode or category containing a range of properties rather than culminating that there are narrower categories which are self-contained.” 91.We agree with Mr Williams that the approach of the Upper Tribunal in Hughes, at [205], is a reflection of the approach in Fir Mill. The object of the exercise, as it emerges from these authorities, is to identify the broad purpose to which the relevant property may be put, consistent with its actual occupation and without requiring more than minor works.92.Further support for this approach can be found in another decision of the Upper Tribunal in a rating case, which we drew to the attention of the parties, prior to the hearing, so that it could be addressed in the oral submissions. In Wigan Football Club Ltd v Wayne Cox (Valuation Officer) [2019] UKUT 0389 (LC) the owner of Wigan Athletic’s stadium sought an alteration of the rating list on the basis of a material change of circumstances. The material change of circumstances relied upon was Wigan’s relegation from the Premier League, via the Championship, to League One. Wigan’s relegation to League One had a substantial adverse effect upon attendance at the stadium and upon the club’s revenues, in particular in terms of broadcasting revenue. 93.As part of their decision the Upper Tribunal considered the question of whether the change in league status constituted a change in the MCO of the stadium. The Upper Tribunal answered this question in the negative, at [50-51]:“50.The differences in the conduct of the business of professional football between leagues are matters of degree. The league makes a difference, but it does not change the fact that the stadium is occupied for the purpose of playing football commercially. The idea of a league as a category is of course selective because it is easy to spot, and clearly labelled. Ms Wigley argued that because there is a limited number of relegations and promotions each season there is no danger of floodgates effect; but the argument for regarding a league as a category would itself require groups of clubs within the league, or even single clubs, to be regarded as different categories because the earning power of, for example, Manchester United is likely to be greater than that of, for example, Bournemouth AFC. On that basis the number of modes or categories is not limited to the four leagues but is unpredictably wide, which goes against the principle that the rating system uses broad categories of use rather than the use of the individual occupier. In Williams the Lands Tribunal [2000] RA 119 said at paragraph 111:“….it is thus the principal characteristics of the actual use that are relevant – those features that reflect the general purpose of the use – rather than the particular occupations of the individual occupier.” 51.We have to agree with the VTE’s pithy summary: football is football. A league is not a mode or category of occupation.”94.We accept that the facts in Hughes and Wigan were not, in either case, on all fours with the present case. That said, both cases seem to us to support a broad approach to the identification of the MCO of a particular hereditament, avoiding sub-divisions which are not based upon any real difference in use. As the Upper Tribunal noted from the decision of the Lands Tribunal in Scottish & Newcastle, it is the principal characteristics of the actual use that are relevant rather than the particular occupation of the individual occupier.95.We can see that the position would be different if, instead of mothballing works, the works which had been carried out in the present case had been carried out for the purposes of decommissioning the Power Station, preparatory to its demolition or conversion to another use, such as a factory or a set of retail premises. On that hypothesis the position would have been equivalent to that considered by the House of Lords in Dawkins (VO) v Ash Brothers & Heaton Ltd [1969] 2 AC 366, where it was held that the Lands Tribunal had been correct to take account of an existing demolition order, relating to the relevant property, in assessing the hypothetical rent for rating purposes; see the reference to this case by Lord Hodge in Monk, at [13]. Effectively, in Dawkins, the relevant property was doomed to demolition. 96.In the present case however the mothballing works were entirely reversible, were intended to be reversed, and were reversed. All that occurred was an economic decision to shut down the Power Station until the market improved. We agree with Mr Williams that it is significant in the present case that it is common ground that there continued to be a hereditament during the period of mothballing, and common ground that there was rateable occupation during the period of mothballing. While the number of staff on site was reduced, the Appellant maintained a staff presence at the Power Station throughout the period of mothballing. All this seems to us to support the argument that there was no change in the MCO of the Power Station as a consequence of the mothballing.97.Mr Wilcox stressed in his submissions that there is a difference in kind between short term preservation and long term preservation, as these concepts are identified in the PB Report. He pointed out, by reference to the evidence of Mr Goodson, that when the decision was taken by the Appellant to mothball the Power Station it had been anticipated that the Power Station would remain in a mothballed state for a period of 2-4 years. In the event the Power Station was out of operation for a considerable period of time, and the works required to bring the Power Station back into operation were extensive and expensive, costing some £9 million and lasting some 14 months. During the period of mothballing the occupation of the Power Station was not, so Mr Wilcox submitted, for the purposes of electricity generation, but rather for the purposes of long term preservation of the Power Station, which was a different kind of occupation.98.We are unable to accept that the distinction drawn by Mr Wilcox does amount to a change in the purpose of occupation for rateable value purposes. The authorities to which we have been referred do not seem to us to support a distinction of this kind. In the present case it is common ground that if the Power Station had been put into short term preservation, of the kind which can occur on a seasonal basis, there would have been no change in the MCO of the Power Station. It is also clear, from all the evidence which we have received, that at least in the case of an older power station such as the Power Station mothballing is part of the way in which the Power Station operates. As Mr Goodson explains, in paragraph 2.6 of his witness statement:“Keadby was one of the earlier generation CCGT’s built in the UK and is therefore relatively inefficient in comparison with more modern plants. Keadby was one of the lower stations in the “merit order” of gas fired power stations. In other words, it would have been one of the last stations to come online following improved market conditions and the first to be switched off when market conditions worsen.”99.Bearing in mind the facts referred to in our previous paragraph it is difficult to see how a meaningful distinction can be drawn between a period when the Power Station is being mothballed, pending an improvement in market conditions, and a period when the Power Station is generating electricity. During both of these periods the Power Station is still being occupied as a power station, but the nature of the business conducted from the Power Station means that the actual generation of electricity is not continuous. We agree with Mr Williams that the purpose of the occupation of the Power Station is better described as the generation of electricity from time to time, adding the point that market conditions control the times at which actual generation of electricity takes place. Equally, if short term mothballing does not amount to a change of occupation for rating purposes, it is difficult to see a logical reason why long term mothballing does amount to such a change of occupation. Equally, it is difficult to see, if such a distinction does exist, where the line is to be drawn between the concepts, which are themselves necessarily fluid, of short term preservation and long term preservation. 100.Returning briefly to Scottish & Newcastle we repeat, for ease of reference, what was said by Robert Walker LJ at [71]:“71. It may be useful to note some situations in which the second limb of the rule, understood in this way, does not assist a ratepayer in obtaining a lower valuation. It does not assist a ratepayer who leaves half of his business premises empty, or otherwise runs his business in an half-hearted or inefficient manner; that does not go to the category of the business occupation, but to the way the particular business is run. Nor does it cast any doubt whatsoever on the decision in Robinson Brothers (Brewers) [1937] 2 KB 445, that a brewer interested in acquiring a tied house should be regarded as in the market for an hypothetical tenancy of a free house; again, that goes not to the category of business for which the premises are occupied, but to the way the business is run.”101.This paragraph seems to us to be apt in the present case. In the present case the mothballing of the Power Station from time to time, whether short term or long term, reflects the way this particular business (electricity generation) is run. The way the business is run means that actual electricity generation is not continuous. Sometimes the pauses in actual electricity generation may be short. Sometimes the pauses in actual electricity generation may be long. As Robert Walker LJ explained, the way a particular business is run does not assist a ratepayer in obtaining a lower valuation. 102.In support of his argument Mr Wilcox sought to rely on a decision of the Lands Tribunal for Scotland; United Kingdom Atomic Energy Authority v Highlands and Western Isles Valuation Joint Board Assessor LTS/VA/2003/78. The case was concerned with the rateable valuation of the civil nuclear installation at Dounreay. The nuclear facilities were no longer in operation, and the buildings which housed the nuclear activity were in varying stages of a lengthy decommissioning process. The decision is a lengthy one, and dealt with a variety of issues, but Mr Wilcox directed our attention to [83], where the Tribunal were considering the question of the correct approach to the valuation of contaminated and redundant parts of the nuclear facilities. In terms of redundant buildings, the Tribunal said this at [83]:“It seems to us, however, that in the case of a contaminated building which no longer contains identifiable radioactive materials which require to be managed as such, the situation is in principle no different from that of buildings awaiting or in the course of demolition, or for that matter alteration, as in Arbuckle Smith, or construction. It could be said of the appellants in Arbuckle Smith that their possession of the subjects for the purposes of preparing them for the intended business use was of value to them, but their Lordships did not accept that that was such a use as to amount to rateable occupation. The idea that entering the premises for the purpose of inspection, cleaning or ordinary maintenance might, as a matter of degree, amount to occupation was rejected by Lord Reid. No doubt the maintenance regime here is something out of the ordinary, but we do not see any difference in principle. Again, in the present case, there was apparently actually some positive benefit in delaying the work required to make a building safe and then demolish it. However, delaying, even for some commercial reason, the demolition of buildings would not, as it seems to us, change the character of the occupation of the buildings. It seems to us that the buildings which are simply in that situation are not in rateable occupation. The case seems to us in that respect to be similar to the construction site case, Dunbarton Assessor v McKenzie: the contractors were making beneficial use of certain buildings on the site but not of the buildings awaiting or in the course of demolition. One might imagine a chemical works closed down for economic reasons, with some buildings perhaps in the course of demolition and others awaiting demolition but meantime requiring care and maintenance of contaminated structures. A decision perhaps to “mothball” some or all of the buildings for future use would not alter the position.”103.Mr Wilcox fastened on the last sentence of this paragraph, as indicating that the Tribunal were of the view that mothballing buildings for future use fell into the same category as the decommissioning of buildings which the Tribunal were considering, and amounted to a change of use for rating purposes. It seems to us however that there are obvious difficulties with applying this sentence to the present case. The Tribunal were clearly considering a very different case, with very different facts. We very much doubt that they had in mind a mothballing process of the kind which has occurred in the present case. Beyond that however, the Tribunal were considering circumstances in which buildings were being decommissioned, with the consequence that they were not in rateable occupation. In the present case, as we have already noted, it is common ground that the Power Station continued in rateable occupation during the period of mothballing. As such, it seems to us that the last sentence of [83] is not apt to apply in the present case.104.In this context we should also make the point, for the sake of good order, that there is a distinction which needs to be drawn between the works which were carried out in the present case for the purposes of mothballing the Power Station, and decommissioning works properly so called. As we understand the evidence and the authorities, decommissioning of a building is the expression generally used to refer to a process whereby the relevant building is prepared for demolition or conversion to a different use. This is not what occurred in the present case, unless one accepts the argument that the long term mothballing of the Power Station did constitute conversion to a different use. We mention this point not only to identify what seems to us to be the difference in meaning between mothballing works and decommissioning works, but also because there is reference in the evidence in this case to the recommissioning of the Power Station. This expression is used to refer to the works which took the Power Station out of its mothballed state and back to active operation. For convenience, we have used the same expression in this decision. There is however a need for some caution in the use of this expression, as it should not be allowed to imply that the works which put the Power Station into a mothballed state were decommissioning works. As we understand the word “decommissioning”, it is not apt to refer to the works which put the Power Station into a mothballed state. 105.The point made in our previous paragraph is not one which, in itself, undermines the argument of either party. Returning however to the decision in UK Atomic Energy Authority we do not consider that the extract from the decision relied upon by Mr Wilcox does actually support his argument in the present case. We were also provided with the decision of the appeal court in this case (the Lands Valuation Appeal Court), but we did not understand Mr Wilcox to rely upon this decision as demonstrating more than the upholding of the decision of the Tribunal.106.In terms of other authorities we were also referred to an older case; R v Melladew [1907] KB 192. In this case a warehouse was used by the defendant ratepayer for the letting out of storage space, either as a whole or in parts. The defendant (who had died by the time the case reached the Court of Appeal and was thus replaced by the executrix of his estate) gave notice to the rating authority that he had gone out of occupation of the warehouse. At the relevant time there were no goods in the warehouse and it was closed. The water supply to the warehouse had also been cut off, and the weights, scales and trucks for weighing and trucking goods on the premises had been removed. The water supply could however be restored whenever this was required, the weights, scales and trucks could be restored, and the warehouse was still available for storage, at such point as there was sufficient demand for storage to justify re-opening the warehouse. Put simply, the factual position was that the decision to close the warehouse was an economic decision, which could be reversed at the point when there was sufficient demand to render it economically justifiable to re-open. 107.The Court of Appeal allowed the appeal of the rating authority, deciding that the defendant had been in rateable occupation of the warehouse when it was closed. The essential reasoning behind this decision can be found in the judgment of Collins MR, at page 202:“To come to the case before us, the business of a warehouseman need not involve the actual presence on the premises either of the warehouseman himself, or of any representative, or of any movable chattels. If he has the necessary appliances ready for use when the demand for storage comes, he is in a position to do business to which the physical occupation of the premises is indispensable. If he holds himself out to let storage space not involving a demise of the whole warehouse, and, by securing exclusive control over the premises, has put himself in a position forthwith to give the accommodation required, is he to be deemed as not the occupier until some customer has been found to deposit goods for storage? And when he has secured customers, and his warehouse has afterwards again become empty, is he to be deemed as having ceased to occupy? I cannot think that this can be so.”108.Collins MR also made the following, more general point about rateable occupation, at pages 200-201:“It is important to remember, in dealing with questions of liability to pay rates, that occupation, which is the basis of liability, necessarily varies with the nature of the rateable subject-matter. The acts necessary to establish occupancy of a dwelling-house may be very different from those which might be required to establish occupation of a non-habitable hereditament. It is, I think, clear from a comparison of many authorities that the intention of the alleged occupier in respect to the hereditament is a governing factor in determining the question whether rateable occupancy has been established.”109.We would accept that the facts of Melladew were not on all fours with the present case. In Melladew the warehouse remained open for business, as soon as sufficient demand arose, without the necessity for extensive works to render the warehouse ready for storage. We do however consider that the decision in Melladew is consistent with the later authorities in terms of its identification of what amounts to a cessation or change of occupation. In Melladew the defendant did not go out of rateable occupation while the business of the warehouse effectively remained in existence, awaiting an improvement in demand. In the present case the Power Station was mothballed, pending an improvement in market conditions. In each case the essential position is the same. The relevant hereditament remained in occupation for the purposes of the relevant business, notwithstanding an interruption in actual business activity, respectively actual storage and actual electricity generation, caused by market conditions. 110.Turning to the Poplar case, and the statements of Lord Buckmaster and Lord Parmoor as to the purpose of rating valuation, these statements are clearly valuable in identifying the basic purpose of rating valuation. They do not however answer the question in the present case, which is whether there was a change of occupation, for rating purposes, when the Power Station was mothballed or, in the language of the PB Report, went into long term preservation. While we accept that the general underlying purpose of rating valuation is to identify the value to the occupier of its occupation of the relevant hereditament, it is clear that this does not mean that the valuation is based upon the business needs or practices of a particular occupier or the use which, for his own purposes, the occupier chooses to make of the relevant hereditament. This is clear from the decision of the Court of Appeal in Scottish & Newcastle, but the same point has been made by Lord Sumption JSC in Woolway (VO) v Mazars [2015] UKSC 53 [2015] AC 1862. In the context of whether distinct spaces under common occupation could form a single hereditament, Lord Sumption said this, at [12]: “Thirdly, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the subjects. The application of these principles cannot be a mere mechanical exercise. They will commonly call for a factual judgment on the part of the valuer and the exercise of a large measure of professional common sense. But in my opinion they correctly summarise the relevant law. They are also rationally founded on the nature of a tax on individual properties. If the functional test were to be applied in any other than the limited category of cases envisaged in the second and third principles, a subject (or in English terms a hereditament) would fall to be identified not by reference to the physical characteristics of the property, but by reference to the business needs of a particular occupier and the use which, for his own purposes, he chose to make of it.”111.We note Lord Sumption’s reference, albeit in a different context, to the physical characteristics of the relevant hereditament. This seems to us to be consistent with what was said by the Lands Tribunal in Scottish & Newcastle at [152(b)]; namely that in determining to what mode or category a particular use belongs it is the principal characteristics of the use to which regard must be had. In the present case, as we find in the evidence, there was no change in the principal characteristic of the Power Station, as between (i) periods of actual electricity generation, (ii) the period of mothballing with which we are concerned, and (iii) any shorter seasonal periods of mothballing which may have occurred over the years. In each case the principal characteristic of the Power Station remained that it was a set of premises used for the generation of electricity from time to time, as market conditions dictated.112.In a memorable phrase in his oral submissions Mr Wilcox described electricity generation as the golden thread which, while unbroken, determined the MCO of the Power Station. The purpose of this expression was of course to pave the way for Mr Wilcox’s argument that, once the Power Station went into long term mothballing, or long term preservation, the thread was broken and the MCO changed, placing the Power Station into a different category of use for rating purposes. As Mr Wilcox pointed out, it is possible for the MCO of a hereditament to change, without any physical change in the relevant property.113.We accept the point that the MCO of a hereditament can change, without any physical change in the relevant property, but for this to happen it seems to us that there needs to be some demonstrably different use of the relevant property. Putting the matter another way, there needs to be a move across categories. To use the examples given in Fir Mill and Scottish & Newcastle, one would need something similar to a factory becoming a shop, or a shop becoming a pub, or a pub becoming a shop.114.Drawing together all of the above discussion the conclusion which we reach on the Appellant’s principal argument is that the MCO of the Power Station did not change, during the period of mothballing. Ultimately, the Appellant’s case depends upon establishing there was a difference in kind, in terms of the MCO, between the Power Station when it was in active operation and the Power Station when it was in the period of long-term mothballing. On the basis of all the evidence which we have received, and all the arguments which we have heard, we are not persuaded that this difference in kind exists. We do not think that the case law supports the existence of such a difference in kind, for rating purposes, in the MCO of the Power Station. 115.In Wigan, at [51], the Upper Tribunal made use of the following part of the decision of the VTE in that case: “51.We have to agree with the VTE’s pithy summary: football is football. A league is not a mode or category of occupation.”116.We conclude that the same pithy summary is appropriate in the present case. A power station is a power station. A period of long term mothballing of a power station, resulting from market conditions, is not a separate or distinct mode or category of occupation.117.Before we leave the Appellant’s principal argument we should make reference to the repairing assumption in paragraph 2(1)(b) of Schedule 6. Although the repairing assumption featured in the submissions, it ultimately turned out to be peripheral to the arguments. The reason for this was that the Agreed Statement, at paragraph 10.1 addresses the question of repair in the following terms:“10.1 It is agreed that. If the mode or category of occupation has not changed and the hereditament remains a gas fired power station that the buildup of silt within the cooling water culverts and the riverbank adjacent to the cooling water intake pipes is a matter of repair and therefore should be ignored for the purposes of the valuation. The mothballing works undertaken on site would also be disregarded on the basis it comprised minor non-structural works to rateable assets or work to non-rateable assets.and If the mode or category of occupation has changed to that of a power station in long term preservation that the presence of silt preventing an alternative use as an operational power station is an essential feature of the hereditament and the valuation should reflect this as well as the mothballed status of the hereditament.”118.As can be seen, the agreement in relation to the status of the mothballing works effectively avoids any risk of the repairing assumption being used to affect the determination of the MCO. As we have previously accepted in this decision, the repairing assumption cannot be used in the determination of the MCO, but only falls to be applied to the hereditament, in whatever category of MCO the hereditament belongs. In the present case therefore, the position is as follows:(1)If the MCO did not change as a result of the mothballing, the works required to deal with the build up of silt which occurred during the period of mothballing can be treated as works of repair, and can be disregarded for the purposes of the valuation. The mothballing works can also be disregarded on the basis that they comprised minor non-structural works to rateable assets or work to non-rateable assets. (2)If the MCO did change to a power station in long term preservation, the presence of silt was an essential feature of the hereditament in that MCO, which falls to be reflected in the valuation, together with the remaining features of the Power Station while in its mothballed state. 119.On either of the above hypotheses the application of the repairing assumption depends upon what decision is made as to the MCO of the Power Station on the Material Day, and comes after that decision. 120.The consequence of this was that although we received a good deal of evidence in relation to the mothballing works and, in particular, in relation to the operation of the cooling water system and the silting which occurred during the period of mothballing, there was no dispute as to how the mothballing works should be treated in the valuation. It seems to us that the real relevance of the mothballing works and, in particular, the silting and desilting of the cooling water system is that these are all matters which fall to be taken into account when considering the argument that there was a difference in kind between the Power Station in active operation and the Power Station in its mothballed state. We have taken these matters into account in reaching our conclusion as to whether the mothballing of the Power Station did change the MCO. In this context, and for the reasons which we have explained, we have not been persuaded that the mothballing works, or the state of the cooling water system during the period of mothballing did have this effect, either directly or as a contributing factor.121.The point we have just made brings us to the Appellant’s second argument; namely that the Power Station was, on the Material Day, incapable of beneficial occupation as a power station and must be valued on that basis. We can take this second argument much more shortly.122.As we have already noted, Mr Wilcox accepted, in oral submissions, that this second argument was, in reality, an argument in support of the case that the MCO had changed on the Material Day to a mothballed power station. As such, it seems to us that the argument begs the question which we have to answer, and which we have already answered in the conclusion which we have just stated on the Appellant’s principal argument. 123.The question is begged because saying that the Power Station was, on the Material Day, incapable of beneficial occupation as a power station begs the question of what the occupation of the Power Station was on the Material Day. It is perfectly true that the Power Station could not, during the period of mothballing, be used for the generation of electricity. It is however also true that the Power Station was in rateable occupation during the period of mothballing. This is common ground between the parties. The question is what was the mode or category of that rateable occupation. This brings one back to the question of the category of MCO to which the Power Station belonged during the period of mothballing. The fact that the Power Station could not be used for the generation of electricity during the period of mothballing is a matter to be taken into account in deciding whether the MCO changed during the period of mothballing, but it does not, in itself, answer that question.124.We are not persuaded that the fact that the Power Station could not be used for the generation of electricity during the period of mothballing had the effect of changing the MCO of the Power Station to a mothballed power station. Our reasons for this conclusion are the same reasons upon which we have relied in reaching our conclusion on the Appellant’s principal argument.125.We therefore conclude that the second argument fails. We do not think that it is correct to characterise the period of mothballing as a period when the Power Station was incapable of beneficial occupation. We accept that, during this period, the Power Station was incapable of generating electricity. We do not accept that this justifies a change in the MCO of the Power Station to a mothballed power station.126.Finally, there is the Appellant’s argument based on consistency. As we understood this argument, which was explained by Mr Wilcox in his oral submissions, there has been an inconsistency of treatment, for rating purposes, as between the Power Station and other power stations. Examples of the rating treatment of other power stations are given in paragraphs 6.7-6.10 of the Agreed Statement.127.Again, we can take this argument shortly. It seems to us to suffer from two fatal difficulties.128.The first difficulty is that the examples given in the Agreed Statement do not seem to us to be anywhere near close enough to the circumstances of the Power Station to give rise to a claim of inconsistent treatment. We were referred, in particular, to Cottam and Fiddlers Ferry Power Stations. In that case however it is clear that the revised rateable value which was agreed in that case reflected the fact that the relevant coal fired power stations were being decommissioned, prior to demolition. As we have noted earlier in this decision, hereditaments which are scheduled for demolition are treated differently for rating purposes. In the present case however the Power Station was not scheduled for demolition or indeed redevelopment or conversion. The Power Station was mothballed for economic reasons, pending an improvement in market conditions. We cannot see any material similarity between the Power Station, on the one side, and Cottam and Fiddlers Ferry Power Stations, on the other side, which would justify a claim of inconsistent treatment. The same seems to us to apply to the other examples given in the evidence.129.The second difficulty is that even if, contrary to our view, inconsistency of treatment was demonstrated, we struggle to see where such inconsistency goes, in terms of its legal effect. We have to determine the question of the MCO on the Material Day by the application of the relevant law, both statute and case law, to the facts of this case. The fact that there may have been different treatment of another power station in the same circumstances would not, as it seems to us, create any legal rule or precedent binding upon us. In theory, and depending upon the parties involved, there might be some argument for equality of treatment based on human rights grounds, or something of that kind. Mr Wilcox confirmed however that he was not seeking to advance any argument of that kind.130.We therefore conclude that the third argument fails. We do not think that there is evidence of inconsistent treatment. Nor do we think, if there had been such evidence, that it could have been relied upon to compel different conclusions to the conclusions which we have reached on the Appellant’s principal and second arguments.