Aardvark SRE Ltd. v Sedgefield Borough Council [2008] EWCA Civ 1109

Case No C3/2008/0713[2008] EWCA Civ 1109
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 6 th August 2008
Before
LORD JUSTICE RICHARDS
Between
AARDVARK SRE LTDAppellantSEDGEFIELD BOROUGH COUNCILRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr J Morley & Mr C Morley appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgment
[1]Aardvark SRE Limited, represented by its director, Mr Morley, makes a renewed application for permission to appeal against a decision of the Lands Tribunal, by which it was held on a preliminary issue that Aardvark did not have a qualifying interest under section 149(2) of the Town and Country Planning Act 1990 to serve a blight notice on Sedgefield Borough Council.[2]The brief factual background is that Aardvark purchased the freehold interest in a terraced house in Durham in November 2005. The intention was said to be to refurbish the property and to hold on to it for a period as an investment property generating income from residential tenants. The work of refurbishment was carried out between November 2005 and June 2006. The property was then let between June 2006 and August 2006, but was thereafter vacant. On 1 October 2006 Aardvark served a blight notice on the council under section 150 of the 1990 Act. The council served a counter-notice which, amongst other matters, raised under section 154(4)(f) the objection that Aardvark did not have a qualifying interest because it was not an owner occupier within the meaning of the legislation. That was the issue decided against Aardvark in the Lands Tribunal by Mr A J Trott FRICS.[3]I will not recite the legislation which is set out in Mr Trott’s decision. An interest is a qualifying interest under section 149(2) if it satisfies one of the conditions under subsection (3). The relevant aspect of the conditions is that the interest must be that of “an owner occupier” or “a resident owner occupier”. Which of those applies depends on the value of the property, but I can focus on owner occupier as it was not and is not contended that Aardvark was a resident owner occupier.[4]Owner occupier is defined in turn by section 168 (1)(a) of the 1990 Act as:
“a person who occupies the whole or a substantial part of the hereditament in right of an owner’s interest in it, and has so occupied the hereditament or that part of it during the whole of the period of six months ending with the date of service.”
There is an additional complexity in paragraph (b) which I can omit because it is not relied on.[5]Mr Trott approached the matter on the basis that Aardvark was indisputably an owner of the property; the question was whether it was an occupier. He referred to the Minister of Transport v Holland [1963] 14 P&CR 259, in which it was held in relation to the equivalent provision of the predecessor legislation -- the Town and Country Planning Act 1959 -- that the same interpretation should be adopted as under the rating statutes, there being no more specific definition of the expression owner occupier in either context. Mr Trott referred to a classic statement of the position for the purposes of rating in Liverpool Corporation v Chorley Union [1913] AC 197, where Lord Atkinson stated that for a person to be rated as the occupier of a house he must occupy the house as a house -- that is, he must use the house for the purpose of living in it, storing other chattels in it, or using it for some other purpose as houses may reasonably be devoted to, and that, as a vacant house is not used for any of these purposes, it is not occupied as a house. Mr Trott held that Aardvark had not occupied the house here in that sense and had certainly not done so in the period of six months prior to the service of the notice. Works of refurbishment, he said, did not constitute occupation of the property and, even if they did, the letting of the property to a tenant and the fact that it was thereafter vacant for two months meant that Aardvark did not occupy the whole of the period necessary to comply with the statutory condition.[6]In seeking to appeal against that decision, Aardvark has put forward a number of contentions. It has done so first by way of written submissions, including a skeleton argument and a detailed written argument amplifying the skeleton, both of them settled by Mr Morley. Mr Morley has also made oral submissions before me in which he has picked out some main features of his argument. I will endeavour in my judgment to encompass the principal points that are raised in writing or orally.[7]It is submitted that Aardvark, as the owner of the house, had what is referred to as a de jure occupation, whatever precisely that may mean, and that this was sufficient. Taking that point by itself as it is advanced in the written material, I regard it as plainly untenable, since the statute deploys separate concepts of ownership and occupation, drawing a clear distinction between them. If ownership were sufficient as giving rise to de jure occupation, it would be unnecessary to refer to anything more than ownership. Reference to occupation would be otiose. In any event -- and this is important for the whole of my consideration of the case -- the meaning given to the predecessor provision in Minister of Transport v Holland has stood for many years, and there is, on the face of it, no reason why a different meaning should be attributed to the same provision in the successor statute, the 1960 statute.[8]It is submitted that Minister of Transport v Holland was based on an application of the rating regime, whereas that has now been replaced, so far as domestic dwellings are concerned, by the council tax regime. The difference between the two is said to be borne out, amongst other things, by the fact that Mr Holland, in that former case, having removed furniture and so forth from the property, was not liable to rates; whereas now, under the present regime, Aardvark was liable to council tax in respect of the house, following the period of refurbishment, simply, as it is put, by being in de jure occupation. Thus it is said that the situation under the 1990 Act is clearly distinguishable from that of the earlier legislation. I will come back to a separate submission to the effect that if one applies the Rating Acts approach then the property would have been rateable in the present case and therefore, as it is said, should also be treated as falling within the definition of owner occupation in the 1990 Act.[9]Concentrating for the moment on the contention that the change from rating to council tax regimes warrants a difference of approach to the meaning of owner occupier in the town and country planning legislation, I would reject that contention as untenable. I agree with Carnwath LJ, who refused permission on the papers, that there is nothing to warrant a different approach under the 1990 Act from that under the predecessor legislation. I note in that connection that the concept of rating remains clearly in the mind of the draftsman even in this part of the 1990 Act (see, for example, the definitions in section 171) albeit that the property here in question was not itself subject to the rating regime. But in any event I can see nothing in the 1990 Act to signal an intention on the part of the draftsman in using the same statutory expression as under the predecessor legislation to change the meaning of that expression as established in the case law on the predecessor legislation.[10]Reference has been made in addition to the definition of “owner occupier” in section 207 of the Housing Act 1985 as amended, namely:
“in relation to a dwelling-house, means the person who, as owner or lessee under a long tenancy, within the meaning of Part I of the Leasehold Reform Act 1967, occupies or is entitled to occupy the dwelling-house.”
The obvious point is that stress is placed on “is entitled to occupy” as assisting Aardvark in the present case. In my view, however, that provision is of no assistance: it arises in a different statutory context, namely part of the 1985 Act concerned with repair notices; its language is self-evidently different from that of section 168 of the 1990 Act, in particular by its inclusion of reference of “entitled to occupy”, something that is not contained in section 168. If anything, the difference between the two definitions works against Aardvark by underlining that the 1990 Act is dealing with actual occupation but not with entitlement to occupy.[11]There is a separate argument, as I understand it, that, even if Mr Trott applied the right legal test, the conclusion he reached was Wednesbury unreasonable on the facts. Reference is made to various items that were in the house during refurbishment and subsequently. As it seems to me, that represents a change of tack from the position before the tribunal, where Aardvark appeared to accept that it was not in actual occupation in the sense that had been indicated by Lord Atkinson in the Liverpool Corporation case; but in any event I take the view that this line of argument cannot get anywhere. Mr Trott made clear that even if Aardvark was in occupation during the work of refurbishment, the subsequent tenancy and then the time during which the house was vacant meant that it had not occupied it for the statutory period so as to meet the relevant statutory conditions. It seems to me that there is no avoiding that conclusion. Insofar as Aardvark seeks to argue that items were left in the house throughout which amounted to actual occupation by it, it has the difficulty that an appeal to this court applies only on a point of law, and it is not possible to raise matters of fact in seeking to persuade the court to reach a different conclusion from that reached by the tribunal below. Further, the matters sought to be raised seem to me to sit unhappily with the facts previously admitted as to the grant of a tenancy for a short period and the house having thereafter been vacant for some months before the blight notice was served; and insofar as it is said that these factual issues can be raised on the ground that the findings of the tribunal were perverse in the light of the material before it, I am wholly unpersuaded that any argument of perversity can get off the ground.[12]But it does remain for me to deal with a further point that came at the forefront of Mr Morley’s oral submissions to me today, in which what is said is effectively this: if it is necessary to apply the Rating Acts approach, as held in Minister of Transport v Holland, then one should take that through to its logical conclusion. In the Rating Acts context, a property had to be empty and had to be “sterile”, as it is put by Mr Morley, for a period of twelve months to avoid rates, and that is what was done by Mr Holland. In the present case the property was not sterile in that sense for such a period; and if the Rating Acts regime was still applicable, the property would be subject to rates. On that basis, it is said, if one is applying the rating analogy, one should reach the conclusion that the property was occupied. In my judgment, however, one cannot take the rating analogy that far. What was applied from the Rating Acts cases was the meaning of owner occupier and in particular the concept of occupation, not questions as to the length of time for which a property had to be unoccupied in order to avoid rates; and indeed the 1990 Act, as I have indicated, sets its own period for which there must be occupation in order to meet the statutory condition. As it seems to me, the attempt to take the Rating Acts argument to its logical conclusion is itself fallacious, in that the reasoning in Minister of Transport v Holland does not require one to import the entirety of the Rating Acts regime when one is concerned only with the meaning of occupation and whether it requires some form of actual occupation or whether, as it is put, de jure occupation is sufficient.[13]For all those reasons I am satisfied that the tribunal’s decision was properly open to it and that an appeal would have no real prospect of success. I agree with the view reached by Carnwath LJ on the papers, and it follows that the renewed application must be refused.

Order

Application refused