Sunderland City Council v Stirling Investment Properties LLP [2013] EWHC 1413 (Admin)

Case No CO/07901/2012[2013] EWHC 1413 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/05/2013
Before
MR JUSTICE WILKIE
Between
SUNDERLAND CITY COUNCILAppellantSTIRLING INVESTMENT PROPERTIES LLPRespondent
IN THE MATTER OF AN APPEAL
BY WAY OF CASE STATED
Guy Roots QC (instructed by Head of Law & Governance Sunderland City Council) forthe AppellantTimothy Mould QC and Guy Williams (instructed by Shakespeares) for RespondentHearing Hearing dates: 7 th& 8 th May 2013
Judgment
[1]This is an appeal by way of case stated from the decision of District Judge Elsey, of the City of Sunderland Magistrates Court, dismissing the Appellant’s complaint in which it sought a liability order against the Respondent in respect of non payment of non domestic rates by the Respondent. The decision was dated 2nd April 2012, the hearing having taken place on 30th March 2012.[2]The case was stated by the District Judge on 4th July 2012. In it he referred to his findings of fact, set out in written reasons and a statement of agreed facts dated 25th February 2012.

The agreed facts

[3]The Appellant is responsible for billing, collection and enforcement of national non-domestic rates pursuant to the Local Government Finance Act 1988 (LGFA).[4]The Respondent is the freehold owner of premises known as Unit G7, Phoenix Towers Business Park, in Sunderland. They fall within the Appellant’s area.[5]The premises comprise a 1500 metre square unit constructed for the purpose of industrial warehousing including office accommodation. It was formerly part of a larger hereditament occupied for some years by Stag Furniture UK. It was then entered in the local rating list as “Furniture Warehouse”. After January 2006 the premises were vacated by Stag Furniture and remain vacant. Stirling paid empty property rates until January 2010 when the furniture warehouse hereditament was split into two portions. One portion, G7, remained empty until Complete Mobile Marketing Limited (CMML) began to use it on 20th May 2011. The other portion was occupied from February 2010 until August 2010 by Harkers Distribution, a furniture distribution company.[6]The premises are described in the local rating list, in force from 1st April 2010, as “warehouse and premises” with a rateable value of £41,250. It remained so listed for the period 1st April 2011-31st March 2012.[7]The premises were used by CMML by agreement with Stirling, between 20th May - 1st July 2011 inclusive, pursuant to an agreement under which CMML used the premises to locate a “blue tooth box”. CMML was billed by the Appellant for non-domestic rates for the period of its use and it has been paid in full by CMML.[8]The blue tooth box, its dimensions approximately 100 x 100 x 50 millimetres, was placed in the corner of the premises to perform marketing and advertising functions. CMML said that ancillary equipment was also installed, but that was not agreed by the Council.[9]On 2nd July 2011, the day after CMML ceased to keep a blue tooth box in the premises, Stirling became liable for payment of non domestic rates if liability were to arise on or after that date. The dispute was whether such liability did arise on or after that date, for a period of six months.[10]An invoice dated 8th July 2011 for £13,371.54 in respect of non domestic rates for the period 2/7/11-31/3/12 was sent to the Respondent. A reminder letter was sent on 26th August 2011, but no payment has been made.[11]Proceedings in the Magistrates Court for a liability order in that sum were commenced against Stirling. Stirling asserted it was entitled to enjoy a period without liability to business rates pursuant to Regulation 4(b) of the Non- Domestic Rating (Unoccupied Property) Regulations 2008 on the grounds that a tenancy was granted to CMML for a period of 43 days, so that the exemption provided by Regulation 4(b) applied for a period of 6 months immediately following the end of the tenancy.[12]The lease was attached to the agreed facts. It provided for Stirling to let the premises, identified as G7, to CMML for a term of 43 days. CMML agreed to pay and indemnify the landlord against any business rates payable in respect of the premises. The permitted use was described as “blue tooth marketing and advertising services” and CMML covenanted not to use the premises otherwise than for the permitted use. The parties agreed that no warranty was given, or to be implied, that the property may be used for the permitted use or any other use. They also warranted that neither party would disclose to any third party details of the agreement without the prior consent in writing of the other.[13]The lease also provided that the landlord may, at any time during the term, terminate the agreement with immediate effect by giving notice in writing to the tenant and that, immediately upon termination of the agreement or expiration of the term, the tenant would remove any of its property from the premises.

The District Judge’s reasons

[14]These were dated 9th July 2012.[15]Having set the scene by reference to the agreed facts the Judge made a number of findings of fact.[16]He found that the evidence established that the user involved the installation of a blue tooth server measuring 95 x 65 x 30 mm with a battery measuring 350 x 240 mm and a wire aerial draped out of a window. In the 42 days the server remained on the premises, it delivered 1789 messages to blue tooth enabled devices within a transmitting range of around 20 metres. The messages were from Crimestoppers and CMML and did not generate revenue. The evidence of the Director of CMML was that it was building a national network which would eventually consist of 100,000 servers nationwide, at which point the company would have revenue from national companies using the network to transmit advertisements. He was aware of the 6 week non-domestic rating exemption (paragraph iii).[17]It was common ground that, if CMML’s acts constituted occupation, the claim failed. The Respondent argued that any partial occupation of the premises would constitute occupation, whereas the Appellant argued that the premises were not occupied as a warehouse and so there was no occupation of the hereditament or, in the alternative, the occupation was so minimal as not to amount to actual occupation. Thus the case boiled down to the issue of what was meant by occupation (paragraph iv).[18]The Judge referred to authority, but said there was no authority in the context of the advances in technology resulting from digitalisation of communications which have made possible the use of small spaces, such as a window sill, which can be used to achieve a commercial end. Reference was made to the leading case of Laing v Assessment Committee for Kingswood Assessment Area [1949] 1 KB 344and the four factors required for occupation. The Judge recorded that, of those factors: (b) (exclusive occupation for the purposes of the possessor) and (d) (the possession must not be transient) were conceded by the rating authority (paragraph (v)).[19]In respect of factor (a), actual occupation, the Appellant’s submission was that the occupation was so insignificant as not to amount to occupation. The Judge stated his conclusion that, in the context of miniaturisation of the means of communication, CMML had the right to occupy, had the means of entry, had exercised that right and had placed equipment for use in their business in the premises. Thus, even though the space occupied by that equipment was a small part of the available space they had, in his judgment, actual occupation (paragraph vi).[20]As to factor (c) (the possession must be of some value or benefit to the possessor) the Appellant had contended that the occupation was not beneficial as it was not occupation as a warehouse and that the use created a separate hereditament. The Judge considered that, whilst it may be the user of the premises was not under the authority of any consent for planning purposes, that was not his concern. The fact was, there was user of the warehouse premises which was commercial and, at least potentially, beneficial to CMML. He said that, if there was a separate hereditament, that was for the valuation officer and not him. As a matter of fact, CMML paid rates during their occupation and, if the occupation had been for more than 6 weeks, the rating authority would not have moved to reduce the rates by a separate valuation. Whilst the box could have been positioned in smaller premises, that did not alter the fact that it was placed in those premises. If that came about by advice to the Respondent, by their letting agents spotting a technical gap in the legislation, it was not for the Judge to distort the legislation to plug the gap (paragraph vii).[21]The Judge found that CMML was in occupation of the premises, the Defendant had the benefit of the rating exemption and the application for the liability order was dismissed (paragraph viii).

The Questions posed for the High Court

[22]The questions posed by the District Judge in the case stated are as follows:(1) Whether I erred in law in finding that the presence of the blue tooth apparatus constituted occupation of the hereditament?(2) Whether I erred in law in finding that the presence of the apparatus amounted to rateable occupation of the hereditament notwithstanding that it had been placed there for the purposes of advertising and not for warehousing?

The statutory framework

[23]Section 41 of the LGFA requires the Valuation Officer to prepare and maintain local non-domestic rating lists for the area. By Section 42, and regulations, a rating list must show every relevant non domestic hereditament in the area, its rateable value, and such information as is prescribed by regulation. Those regulations, (The Non Domestic Rating (Miscellaneous Provisions) Regulations 1989) provide that, of each hereditament, the list shall contain, amongst other things, a description of the hereditament and its address.[24]Section 43(1) of LGFA provides that a person is liable to pay non-domestic rates in respect of a hereditament for any day on which(a) he is in occupation of all or part of the hereditament and(b) the hereditament is shown in the non-domestic rating list.[25]By Section 45 of the LGFA the “owner,” that is the person entitled to possession (Section 65 (1)) of a hereditament, is liable to pay non-domestic rates in respect of any day on which it is unoccupied if it is shown in the non-domestic rating list and is within a class prescribed by the Secretary of State.[26]The Secretary of State has prescribed the classes of hereditament for the purposes of Section 45 by means of the Non-Domestic Rating (Unoccupied Property) Regulations 2008. Regulation 3 provides that all classes are prescribed except for those listed in Regulation 4.[27]Regulation 4(a) provides that a hereditament is not prescribed which, subject to Regulation 5, has been unoccupied for a continuous period not exceeding three months.[28]Regulation 4(b) provides that a hereditament is not prescribed, and consequently not liable to pay unoccupied rates if it is:
“a qualifying industrial hereditament that, subject to Regulation 5, has been unoccupied for a continuous period not exceeding 6 months.”
[29]A “qualifying industrial hereditament” is defined by Regulation 2 as: “any hereditament… in relation to which all buildings comprised in the hereditament are-(a) constructed or adapted for use in the course of a trade or business, and(b) constructed or adapted for use for one or more of the following purposes and one or more purposes ancillary thereto - …(ii) storage (including the storage or handling of goods in the course of their distribution)…. It is not in dispute that Unit G7, at all material times, fell within the definition of a qualifying industrial hereditament having been constructed for use for the purposes of storage.[30]Regulation 5 provides:
“A hereditament which has been unoccupied and becomes occupied on any day should be treated as having been continuously unoccupied for the purposes of Regulation 4(a) and (b), if it becomes unoccupied again on the expiration of less than 6 weeks beginning with that day.”
[31]Section 55 of the LGFA provides for regulations to govern the alteration of rating lists and the grounds upon which an appeal may be made to a Valuation Tribunal against a proposal to alter the rating list or the accuracy of the list.[32]The District Judge was referred to Regulation 4 of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009. They provide for alterations to the rating list and appeals following a proposal to alter the list by either the Valuation Officer or an interested person upon grounds which include:
“4(1) … (b) the rateable value shown in the list for the hereditament is inaccurate by reason of a material change of circumstances which occurred on or after the date on which the list was compiled … (g) A hereditament not shown in the list ought to be shown in that list (h) a hereditament shown in the list ought not to be shown in that list … (l) property which is shown in the list as one hereditament ought to be shown in more than one hereditament … (n) the description shown in the list for a hereditament is wrong.” (b) the rateable value shown in the list for the hereditament is inaccurate by reason of a material change of circumstances which occurred on or after the date on which the list was compiled … (g) A hereditament not shown in the list ought to be shown in that list (h) a hereditament shown in the list ought not to be shown in that list … (l) property which is shown in the list as one hereditament ought to be shown in more than one hereditament … (n) the description shown in the list for a hereditament is wrong.”
[33]The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 provide, amongst other things, at 23(1):
“any matter which could be the subject of an appeal under regulations under section 55 of the Act may not be raised in proceedings under this Part.”
[34]In Secerno Ltd v Oxford Magistrates Court and Vale of White Horse District Council [2011] RA 247, it was confirmed that the role of the Magistrates Court was limited to considering whether liability had arisen following the service of a demand notice under Regulation 4 and a non payment of sums due and demanded on such an application. It was not open to the Magistrates Court (or an Appeal Court) to go behind the list and entertain a challenge to the validity or accuracy of the entry in the rating list upon which the liability order is based (see also Hackney BC v Mott and Fairman [1994] RA 381, R v Vtesse Network Ltd v North West Wiltshire Magistrates Court [2010] RA 1). The Appellant’s written submissions Rateable occupation of a hereditament

The Appellant’s written submissions

[35]The Appellant puts forward the following propositions: 1. A hereditament is a unit of occupation of land or buildings. 2. The rateable value of a hereditament is the rent at which it could be let from year to year for its existing mode or category of occupation. 3. While there cannot be more than one person in rateable occupation of a hereditament, there can be more than one hereditament in or under land. A hereditament may comprise the right to use land for a specific purpose, in contrast to possession for all purposes. For example, there are many cases in which pipes, wires, and other facilities in or under land are “hereditaments” (Reviewed most recently and applied in Vtesse Networks Ltd v Bradford (VO) [2006] RA 427). 4. Whilst relatively slight acts of user have been held to amount to rateable occupation, the question is always whether the hereditament was used and occupied according to its nature. 5. Although a chattel is not a rateable hereditament by itself, nevertheless, it may become rateable together with the land if it is placed on a piece of land and enjoyed with it in such circumstances, and with such a degree of permanence, that the chattel with the land can, together, be regarded as one unit of occupation (see Lord Denning, LCC v Wilkins (VO) [1957] AC 362.[36]These propositions are said to inform the following questions, namely; 1. Whether the degree of use was sufficient to amount to rateable occupation of the hereditament, and 2. Whether the nature of the use was such as to amount to rateable occupation of the hereditament.

Degree of use and the “de minimis” maxim

[37]The Appellant contends that the degree of use of G7 by CMML by means of the blue tooth apparatus was so small that it should be disregarded when determining whether CMML was in rateable occupation.[38]The Appellant cites Hayes (VO) v Loyd [1985] 1 WLR 714 which was concerned with the occasional use of agricultural land as a racecourse. The Appellant says that the de minimis maxim applies, where necessary, to determine whether the degree of use made of land or buildings was sufficient to amount to rateable occupation. Lord Bridge, in that case, had rejected a second submission that the use had to be “substantial” in order to be more than de minimis but, it is said, the House of Lords did not, in that case, reject the underlying proposition that the de minimis maxim applied. Reliance is placed on Wirral Borough Council v Lane[1979] RA 261. In that case the Queen’s Bench Division upheld a Magistrate’s decision, applying the de minimis maxim, to conclude that there was no rateable occupation of a house which, though not lived in, had been heated and maintained and used for making telephone calls. It is said that the use in that case was more extensive than in the present case.[39]The Appellant recognises that the question is one of mixed fact and law but, it is said, the District Judge arrived at a conclusion which no reasonable Court could have reached on the facts. It is said that the miniaturisation of the means of communication, which influenced the District Judge, was not a relevant factor in determining whether the degree of use was de minimis. It is clear that CMML only required a minute amount of space for its apparatus and never had any need to, or intention of, occupying more than that minute amount. Reliance is also placed upon the nominal rent, £1, when compared with the rateable value of £41,500, reflecting the annual letting value for use as a warehouse.

Nature of use

[40]The Appellant submits that the Judge failed to ask himself the fundamental question “Does the evidence support the proposition that the hereditament (the warehouse) was occupied?”. It points out that the agreement was drafted in terms which excluded the use of the premises as a warehouse and there was no storage or distribution use at all by CMML. The Judge, it is said, erred by treating that as a planning matter, whereas the Appellant’s contention was that it should be regarded as evidence pointing away from CMML’s occupation of the warehouse hereditament. The fact that the presence of the blue tooth apparatus was potentially beneficial to CMML’s business was not evidence that there was beneficial occupation of the hereditament as a warehouse.[41]The Appellant contends that placing the blue tooth apparatus within Unit G7 for the purpose of sending advertising messages had the effect of creating a separate hereditament, in much the same was as the placing of a caravan on a pitch was held to have created a separate hereditament.

The Respondent’s written submissions

[42]The Respondent submits that the District Judge’s decision was underpinned by three legal principles: 1. The question of rateable occupation should be considered against the Laing factors. 2. The question of actual occupation should not be tested against whether the use was “substantial” but simply whether there was actual occupation. 3. The question whether the use was beneficial to CMML should be answered by considering whether it was of benefit to it as a matter of fact, not by reference to the description of the premises as a warehouse in the rating list. As the District Judge, on the evidence, found that there was actual occupation of benefit to CMML, he did not err in law in concluding that their occupation was rateable occupation for 43 days so as to entitle the Respondent to the benefit of the exemption from the business rates for 6 months.

Actual occupation

[43]The Respondent contends that the Appellant’s acceptance that the question of degree of use was a matter of fact is correct and relies on the District Judge’s finding of fact that there was actual occupation.[44]Reference is made to Makro Properties Ltd v Nuneaton and Bedworth Borough Council [2012] RA 285, in particular paragraph 43 where

the Judge says:

“The proper approach to be drawn from the authorities … is to consider both use and intention. If there is clear evidence or inference of an intention to occupy, such an intention taken together with the user, albeit slight, may be sufficient to amount to occupation as determined in Melladew. A slight user without such evidence of intention may not be sufficient. …”
[45]The Respondent endorses the Appellant’s concession that evidence of a slight use may be sufficient to amount to rateable occupation and relies on the findings of fact made by the District Judge as demonstrating no error of law.

Beneficial occupation

[46]The Respondent contends that the District Judge did ask the fundamental question “Does the evidence support the proposition that the hereditament … was occupied”, and relies on paragraph (vii) of his reasons where he said:
“The fact is that there was use of these warehouse premises”
[47]The Respondent contends that the essence of this part of the Appellant’s submissions amounts to no more than that the occupation could not be beneficial because it was not occupation as a warehouse. The Respondent contends there is nothing in the Laing principles to suggest that occupation, otherwise beneficial, should be disregarded by reason of the description, in the rating list, of the building comprising the hereditament and amounts to a contention that there may only be beneficial occupation of a hereditament where the nature of the occupation is consistent with the use of the hereditament, as described in the rating list. It is said this has no basis in authority. It is not referred to in Laing. The fact that the use of the premises, which generates the benefit, is other than the use described in the rating list, is nothing to the point. The occupier still benefits from occupation.[48]On the Appellant’s argument, where benefit does not accord with the description in the rating list, the landlord would be liable to pay unoccupied rates, notwithstanding that the tenant was in actual, exclusive and beneficial occupation.[49]The Respondent contends that, if the use to which the tenant puts premises is different from that which is described in the rating list, the remedy lies with the Valuation Officer to maintain or change the rating list which would give rise to a right of appeal to the Valuation Tribunal.[50]It is said that Melladew [1907] KB 107 emphasises that the intention of the alleged occupier in respect of the hereditament may be a factor in determining the question of whether rateable occupancy has been established and that the test appears to be: “Has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it? … It is as long as he uses the premises for the purposes of his business he is in occupation of them for rating purposes” (Farwell LJ at page 203).[51]It is said that none of the authorities relied upon by the Appellant establishes the proposition that beneficial occupation of a hereditament requires the hereditament to be used for its use as described in the rating list in order for the occupation to be rateable.

Authorities

[52]A large number of authorities have been cited; I refer only to those which are relied on as establishing fundamental principles as opposed to illustrating their application.[53]The King v Melladew [1907] KB 192. This case emphasises that occupation, which is the basis of liability, necessarily varies with the nature of the rateable subject matter. It is clear that the intention of the alleged occupier in respect to the hereditament is a governing factor in determining whether rateable occupancy has been established (see Collins M.R. pp 200-201).[54]Whether premises are or are not unoccupied is, in many cases, a mixed question of fact and law. There may be visible physical occupation by the person rated, and such occupation may be of part, but that does not exhaust all the cases of occupation. The test appears to be, has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders reasonable to infer was fairly within his contemplation in taking or retaining it? If and so long as he uses the premises for the purposes of his business he is in occupation for rating purposes. (see Farwell L.J. p 203-204)[55]Associated Cinema Properties Ltd v Hampstead Borough Council [1944] 1 KB 416). It was said in this case to be significant that no case could be cited in which occupation had been held to be established without proof of some overt act amounting to evidence of user. When the authorities were examined, it became manifest that intention is relevant only when it goes to show present occupation and user (see Du Parcq L.J. at page 416)[56]John Laing and Sons Ltd v Assessment Committee for Kingswood Assessment Area [1949] 1 KB 344, identifies, in the judgment of Lord Justice Tucker at page 350, the four propositions which have been taken as the correct formulation of the test:
“First, there must be actual occupation; secondly, that it must be exclusive for the particular purposes of the possessor; thirdly, that the possession must be of some value or benefit to the possessor; and, fourthly, the possession must not be for too transient a period.”
[57]Arbuckle Smith & Co Ltd v Greenock Corporation [1960] AC 813. In this case a company bought a warehouse with a view to using it as a bonded store. Before it began using it as a bonded store, considerable alterations had to be performed to obtain approval by Customs & Excise. The local authority sought to charge rates for the period during the works and before the warehouse began being used for its purpose as a bonded warehouse. Viscount Kilmuir at page 821 said:
“So long as the activities were confined to making the premises fit for a contemplated purpose the premises were not serving the appellant’s purposes as warehousemen … if there is no use of premises according to their nature I find it difficult to see how there is occupation attracting liability for rates.”
Lord Read at 824-5 said:
“I can see a clear distinction between maintaining, repairing or improving a fabric on the one hand and enjoying the accommodation which it provides on the other …the owner who in some way enjoys the accommodation is occupying the premises but .. the owner who merely maintains, repairs, or improves his premises is not thereby occupying them, he is preparing for future occupation by himself, his tenant or disponee … The difficulty in this case arises from a misapplication of the requirement that to be rateable, occupation must be beneficial. The argument is that if you find the owner making use of his property, and that use is beneficial, then there must be occupation; the kind of use does not matter. But if the word “use” is used in that wide sense that argument must ... be wrong or at least too widely stated …The real question in this case, to my mind, is not whether that kind of use was beneficial, it is whether that kind of use, beneficial or not, can amount to occupation.”
Lord Radcliffe commented that the central question was the meaning to be attributed to “occupation”. He noted that authority accorded with the principle that, to be a rateable occupier, a person must enjoy some benefit from the land. His occupation must be a thing of value. It was evident that there would not be occupation in the context of rating unless some use was made of the hereditament in the relevant year. Use, in general, conveys the idea that enjoyment is derived by the user from the corpus of the object enjoyed. This applied to non-domestic premises to determine whether or not occupancy ceases or begins, though they must be adapted to the particular circumstances of such premises and the business for the purpose for which they were created (see page 828). His Lordship then adopted the formulation of Farwell L.J. already referred to. He went on to comment that the Appellant never used the warehouse in question as a warehouse during 1957- 58 and that this was the determining point. He then contrasted that fundamental fact with other situations in the following terms:
“This is not a case of a warehouse being kept empty in one year by its owner after it had been used as such by him in the previous year, nor is it one of those cases of “stand-by” premises … nor again is it a case of premises bought for one business purpose being, in fact, put to some other use. Here, if nothing more had been done than was done up to the date when the work on of the adaption began, there would have been no question of rateable occupation.”
[58]Wirral Borough Council v Lane [1979] RA 261. In this case the Magistrates had applied the de minimis principle and the Court of Appeal upheld their decision stating that they were entitled to apply that principle.[59]Hayes v Loyd [1985] 1 WLR 714. In this case, too, their Lordships approved the use de minimis as a relevant test but refuted a gloss on that test which required the use to be “substantial”.[60]Makro. I have already referred to this case as cited in the relevant written submissions. Oral submissions “de minimis”

Oral submissions

[61]Mr Roots QC, in addition to his written submissions, made the following oral submissions.[62]In relation to de minimis he identified the following four propositions. First, rateable occupancy requires evidence of actual user. Second, in determining whether the amount of user is sufficient to constitute rateable occupation the de minimis principle applies. Third, on the facts as found by the District Judge, there was no rational conclusion other than that the use to which CMML put the hereditament was too little to amount to rateable occupancy. Fourth, that cases where it was held that relatively slight user may, none the less, be sufficient turned on their facts and could be distinguished, by and large, because there was to be imputed in the owner the intention that the premises may be used to a much greater extent for the purposes of their business if circumstances permitted.[63]Mr Mould QC, for the Respondent, accepts that the de minimis principle is available to decision makers when deciding whether the level of user amounts to occupancy for the purpose of rating.[64]Mr Roots QC, on the issue of the rationality of the District Judge’s decision, points to the extremely small size of the apparatus in relation to the space of 1500 square metres comprising the hereditament. He submits that the fact that the equipment did not take up any floor space, but could be located on one window sill, was evidence of a lack of intention to use more of the warehouse space than was actually used by locating the blue tooth equipment. CMML was, in any event, precluded by the terms of the lease to use the hereditament for any other purpose. He also submitted that reliance by the Judge on the miniaturisation of communications equipment was an irrelevant matter, which made his decision unlawful.[65]The Respondent contends that the core issue is whether the condition for unoccupied hereditaments liability arose under s.45 (1) (d) namely, whether the hereditament fell within a class prescribed by the Secretary of State under the 2008 regulations. The class thus prescribed was “all relevant non-domestic hereditaments other than those described in regulation 4”. That regulation exempted from the s 45 regime a qualifying industrial hereditament that has been unoccupied for a continuous period not exceeding 6 months by reason of the fact that, pursuant to regulation 5, it had been unoccupied, then “becomes occupied” and remains occupied for a period of no less than 6 weeks. Thus, the Respondent contends that the question at the heart of this case is whether CMML, at the commencement of and for the duration of its lease caused the hereditament to “become occupied”.[66]The Respondent’s contention is that it was open to the District Judge to conclude that the intended and actual use by CMML of the hereditament was not so exiguous as to be devoid of legal meaning. On the contrary, the facts found by the District Judge were that it had exclusive occupation of the hereditament for the purpose, which it achieved, of operating its blue tooth equipment and, as a result, it achieved that which it set out to achieve namely: to demonstrate its viability as a mechanism for delivering advertising messages to a significant number of recipients passing within range of the blue tooth equipment (1789 messages delivered). The Respondent points out that only a small physical presence was necessary because of the nature of the business operated by CMML, but CMML did utilise the premises to the fullest extent required for the purposes of its business development project. Thus, looking at the intended use to which the premises was put, the District Judge was entitled to find that there was actual occupation which was beneficial to CMML to a sufficient degree to amount to rateable occupation for the duration of the lease.

The nature of the premises

[67]Mr Mould QC acknowledges that the period of exemption from liability from non domestic rates arises, if at all, because Unit G7 is a qualifying industrial hereditament. That is to say, one in relation to which all buildings are constructed or adapted for use, in this case, for storage. He also accepts that the hereditament became occupied by CMML for a use other than storage.[68]He argues that the only question is whether the buildings comprising the hereditament became occupied by CMML in a way which amounted to rateable occupation and that this is not limited to the use being the same as that for which it was originally constructed, as described in the rating list. He says that, as long as the buildings themselves were occupied, and the occupation was sufficient to amount to rateable occupation, any divergence between the nature of CMML’s use and the description of use in the rating list is of no relevance.[69]Mr Mould QC relies on a particular passage in the speech of Lord Radcliffe in Arbuckle Smith. In that case the contrast was being drawn between the “use” of the premises, whilst it was being altered in order to obtain Customs & Excise approval, and its “use” once those works had been completed and the warehouse could be used for its natural purpose. It was in that context that expressions such as “use of premises according to their nature” were being used. However, he points out that Lord Radcliffe, in the passage at page 828, specifically uses an example of premises bought for one business purpose, but being put to some other use, as, nonetheless, being capable of giving rise to rateable occupation. He also points out that, in Arbuckle Smith, the formulation of Farwell L.J. in Melladew, upon which he relies, was approved.[70]Thus, Mr Mould QC contends that the focus must be on the actual use to which CMML was putting the premises and whether it was within CMML’s contemplation in taking on the lease. He says that it was. Accordingly, if the use and intention, together, surmounted the de minimis hurdle, it would be very odd were the occupation by CMML not to be rateable occupation merely because CMML was using the premises for a purpose other than that for which it had originally been constructed and as described in the rating list.[71]He says that the District Judge, having found that the combination of use and intention, coupled with the beneficial nature of the use to CMML surmounted the de minimis hurdle, then it was open to the District Judge to conclude that the hereditament had become occupied by CMML and had continued to be occupied by them for a period of no less than 6 weeks so as to satisfy regulation 4(b). In that case the hereditament did not fall within a class prescribed by the Secretary of State under s.45(1)(d) and, accordingly, for the succeeding period of 6 months during which the premises remained unoccupied the Respondent was not liable for non-domestic rates.

Conclusions

[72]For the reasons advanced by Mr Mould QC, I am satisfied that it was open to the District Judge, on the facts as he found them, to conclude that CMML occupied the hereditament in circumstances which amounted to rateable occupation for the duration of the lease. They occupied, exclusively, the hereditament for the purpose of the permitted user. They intended to use the premises for that purpose and, in the result, it was beneficial to them in the way described. In my judgment the fact that the nature of their undertaking was such that, once they had identified the optimum location for their equipment, they did not need to “use” more than a minute fraction of the area encompassed within the premises did not prevent their occupation being rateable occupation. Although the rent paid by them was nominal, the outgoings, in terms of their accepting liability for rates, were not. This reflects the value, or potential value, to them of the lease and their occupation of the premises.[73]Furthermore, in my judgment, given the findings of fact, the District Judge was entitled to conclude that the intended use, though slight in terms of the extent of the space occupied, did give rise to actual occupation and surmounted the de minimis hurdle.[74]In addition, having regard to the way in which the House of Lords expressed themselves in Arbuckle Smith, particularly in the speech by Lord Radcliffe, in my judgment it is not relevant, for this purpose, that the nature of the use to which CMML put the hereditament was different than that which was described in the rating list. Its occupation of the premises was such as to give rise to its liability to pay non domestic rates for as long as the lease continued. There is nothing in the legislation which limits the ability of a local authority to levy rates to occupation for a purpose which is identical to the description of the hereditament in the rating list. The issue of any apparent disconnect between the nature of the occupation of an hereditament and its description in the rating list is a matter for the valuation officer to address if he thinks that a new, or additional, “wifi hereditament” may have been brought into existence comprising the wifi connection.[75]In coming to these conclusions, I note that, since oral argument, Sales J has given judgment in joined cases. (Public Safety Charitable Trust v Milton Keynes Council and others CO/ 8616/2012). I have received written submissions on the significance of that decision for this case. It was assumed there, without argument, that the charitable trust was the rateable occupier of the hereditaments, through the presence of similar equipment, even though the equipment occupied only a tiny proportion of the available space and though, in some of the joined cases, the use for that purpose was the subject of the rating list description as a “wifi hereditament”. The issue in those cases was a different one: whether the appellant qualified for charitable status exemption on the basis that the premises were wholly or mainly used for charitable purposes. I agree with both parties to this appeal that, other than the fact that the point in issue was not the subject of any argument, none of the arguments, or the terms of the judgment, in that case are directly relevant to the issue I have to decide.

Decision:

[76]The conclusion of this Court is as follows: 1. The District Judge did not err in law in finding that the presence of the blue tooth apparatus constituted occupation of the hereditament. 2. The District Judge did not err in law in finding that the presence of the apparatus amounted to rateable occupation of the hereditament notwithstanding that it had been placed there for the purposes of advertising and not for warehousing.[77]It therefore follows that this appeal is dismissed.

Cited in 2 later judgments