Chief Assessor & Comptroller of Property Tax v Van Ommeren Terminal (S) Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 30 June 1993
• Neutral Citation: [1993] SGHC 148
• Docket Number: Originating Motion No 30 of 1992
• Date: 30 June 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Oei Chun Hung (Comptroller of Property Tax)
• Citation: [1993] SGHC 148
• Defendant Counsel: Michael Khoo (Michael Khoo & BB Ong)
• Court: High Court (Singapore)
• Subject Matter: Building,'Buildings','Land',Words and Phrases,Property tax,s 2 Property Tax Act (Cap 254),Whether storage tanks and pipelines on respondents' property were 'buildings' or 'land' for the purposes of assessment,Revenue Law

Cur Adv Vult

This is an appeal by the Chief Assessor and the Comptroller of Property Tax against a decision of the Valuation Review Board directing that the Chief Assessor omit the value of storage tanks and pipelines in arriving at the annual value of the subject property which consists of 31.17 acres of land on a small island known as Pulau Sebarok. The island is located southwest to the main island of Singapore.

The respondents, Van Ommeren, who are in the business of letting out oil storage facilities, have leased the property from the Port of Singapore Authority (PSA) for a term of 30 years commencing on 1 January 1981. In its original state the property was a barren piece of land. Van Ommeren had constructed on the property a facility for the bulk storage of oil.

In determining the annual value for the property the Chief Assessor had applied proviso (b) to the definition of `annual value` in s 2 of the Property Tax Act (Cap 254) (`the Act`), namely, five per cent of the estimated value of the property, including buildings erected thereon. In assessing the value of the property the Chief Assessor had taken into account, inter alia, the costs of constructing the storage tanks and the pipelines on the property. Van Ommeren objected to the Chief Assessor taking those costs into account. They contended and continue to contend that unless the storage tanks and pipelines are `buildings` or `land` within the meaning of the Act, no property tax is payable in respect of those two items The issues that are raised in this appeal are questions of law.

The facts

Before I proceed to examine the points of law, I shall first set out the facts as found by the Board, which are not disputed. In fact, no evidence was called by the Chief Assessor to contradict those adduced by Van Ommeren. I also note that members of the Board had visited the site and therefore, had a first-hand view of the factual position.

In the words of the Board, `the oil terminal on the island is basically divided into two areas - one for the storage of chemicals and the other for the storage of petroleum products. There are many tank pits on the island which are separated by bunds or dykes for safety reason. Each tank pit has several storage tanks. These tanks are not affixed to or attached to the land on which they stand. They are fully resting on a bed of rock and sand. The capacity of each tank is 6,000 cubic metres.`

The tanks were fabricated elsewhere and were brought by barge to the island and hoisted onto the site. Of course, each tank could be moved from one site to another. The operation manager of Van Ommeren, one Mr Dompeling, told the Board that his company was contemplating moving all the tanks on Pulau Sebarok used for the storage of chemicals to Pulau Sakra. They were thinking of having all the tanks for one product in one terminal. He said that last year they hoisted up one of the tanks for levelling the bed of sand on which the tank was resting. He also said that a tank may also have to be jacked up to conduct an inspection of the bottom plate and to carry out the necessary repairs

The tanks are connected by pipes leading to the jetty on the island. The pipes are free standing pipes, resting either on concrete or metal supports. The Board found that `the storage tanks are not in any way affixed or fastened to the ground or structures attached to the grounds. The tanks rest by their own weight on a flat bed of sand and rock mixture.` The Board also found that `the pipelines are not affixed to the land or to any structures attached to the land. Except for a minuscule section of the pipelines which runs under a road-way, all the pipelines are overground.`

The law

Section 6 of the Act imposes the payment of property tax in respect of `all houses, buildings, lands and tenements whatsoever.` The expression `building` in the Act is defined to mean:

any structure erected on land and includes any house, hut, shed or similar roofed enclosure, whether used for the purposes of human habitation or otherwise, and includes any slip, dock, wharf, pier, jetty, landing-stage, underground or overground tank for the storage of solids, liquids or gases, and any oil refinery.

The first question is what is the proper construction to be given to this definition. The Board could not accept the Chief Assessor`s submission that the use of the words `and includes` in the definition expands the primary meaning of `any structure erected on the land.` This was how the Board reasoned:

The definition of the word `building` in s 2 of the Act does not state that the word includes. If the word `includes` had been used in place of the word `means` in the definition then it indicates an extension of the ordinary meaning of the word `building`. That is not so in our present case. In our view by the use of the word `means` in the definition of `building`, the legislature intended the word `building` to mean any structure erected on land and nothing else! The confusion arises because it is followed by the words `and includes`. The words appearing after the expression `and includes` in the definition of the word are merely examples of structures erected on land. For the overground storage tanks for solids, liquids and gases in our present case to [be] regarded as buildings within the meaning of the Act they must be erected on the land.

Later in the judgment the Board held that `the tank alone is not, and cannot be, a structure erected on land.` It went on to explain:

The basic meaning of `structure` ... is a thing constructed. The ... tanks were not constructed, or built-up, on the island.

It is an established canon of construction that when the word `means` is used in a definition that definition is intended to be exhaustive. It is different if the word `include` is used. Lord Watson enunciated the point as follows in Dilworth v Commissioner of Stamps at pp 105-106:

The word `include` is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.

Very much the same view was uttered by Lord Diplock in Inland Revenue Commissioners v Joiner , at pp 1060-1061.

However, in the definition now under consideration, the legislature has used the words `means ... and includes`. How should one approach such a definition? In my opinion a plain reading of that definition is surely this. The legislature has defined the word `building` to bear the ordinary sense of `any structure erected on land`. But it has also expanded the meaning of that word to encompass those items enumerated after the words `and includes` irrespective of whether those items are structures erected on land. It will be noted that the legislature has used the words `and includes` twice in the definition. With respect, I am unable to agree with the Board that the things enumerated after the words `and includes` are merely examples of structures erected on land. For instance, a pier or jetty is not a structure erected on land. It is a structure erected over the sea or water. Similarly, I do not see how one could appropriately say that an underground tank is a structure erected on land. Indeed, most of the items listed are not items one would ordinarily think of as buildings

This construction of the words `means ... and includes` in the definition which I have adopted is in line with the Indian Supreme Court decision in Regional Director, Employees` State Insurance Corp v Highland Coffee Works , where the term `seasonal factory` was defined in a similar fashion, namely, `seasonal factory means a factory ... and includes a factory ...`. I should add that the portion of that definition after the word `includes` was inserted by an amendment Act in 1966. The court held (at pp 619-620):

The amendment is in the nature of expansion of the original definition as it is clear from the use of the words `include a

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