“(g) subject as hereinafter provided, that on the termination of the current tenancy the landlord intends to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by him therein, or as his residence.”
“4. There be a further preliminary issue trial to determine whether: (1) the Claimant occupied the Premises for the purposes, or partly for the purposes, of its business at the date of the expiry of the contractual term of the Lease, and (2) the Defendant satisfies the ground of opposition contained in Section 30(1)(g) of the Act.” (1) the Claimant occupied the Premises for the purposes, or partly for the purposes, of its business at the date of the expiry of the contractual term of the Lease, and (2) the Defendant satisfies the ground of opposition contained in Section 30(1)(g) of the Act.”
“14. As Mr van Tonder observed, there was no documentation from any third party with the Claimant which demonstrated that the Claimant conducted business from the flat (OVO Energy would simply have written to the name and address provided), and in any event, the precise nature and extent of the Claimant’s business is unclear. The headed notepaper states, under the name of the Claimant, “Commercial Property Management”
“15. It seems to me that either the Claimant is carrying out all of this work for the other companies, pursuant to some inter-corporate agency arrangement the details of which were not set out in the Claimant’s evidence and have not been disclosed, emerging only in Mr Moaven’s evidence in cross-examination, or the Claimant is not carrying out this work but for accounting or tax purposes, which are unclear and unexplained, all the money is going through the Claimant’s accounts, and none through any of the other companies (which are treated as dormant). 16. I have to say that I found the arrangements described by Mr Moaven extremely odd and difficult to follow. He stressed several times that the Claimant was not acting as agent for the other companies, but I fail to see what other arrangement it could properly be; each company would have responsibilities under the lease (to pay rent to the superior lessor, for example) as well as a sub-tenant whose obligation it is to pay rent to the company. I cannot understand how a company in that position can properly be dormant (that is, not doing business – Companies House defines a dormant company as one that has had no significant accounting transactions during the accounting period) when it is in fact contracting out what plainly in law is indeed its business entirely to another company; that is still conducting business, but through an agent; the agent should be charging for its work, and the true position ought to be reflected properly in the respective company accounts. 17. My overall conclusion on Mr Moaven’s evidence about these arrangements is that the Claimant has not satisfied me – on the evidence I have seen and heard – that it is actually carrying on this business on behalf of the other companies at all; I do not accept that Mr Moaven’s description of the position is anything other than an accounting or taxation exercise.”
“18. Nonetheless, and despite the paucity of evidence in relation to precisely what work the Claimant is in fact doing, I find myself driven to accept Mr Moaven’s evidence that the Claimant is carrying on business in respect of the 5 leases which it itself owns. In respect of those leases (as with the business model for the other 17 companies which I have described above) the Claimant collects rents from its sub-lessees and pays them to the superior landlord (the Defendant). That, in my view, is sufficient to establish that the Claimant is carrying on business for the purposes of section 23(1) of the 1954 Act, and I think that Mr Gatty is right when he says that a company can occupy a property through a manager: see for example Pegler v Craven[1952] 2 QB 69 at 74. The occupation need not be of the whole of the premises, nor need the business be the whole purpose of the occupation: see the wording of section 23(1) of the 1954 Act.”
“19. Mr van Tonder says that the position is no different from that of anyone with a “home office” or where a company director takes work home. However, it seems to me that where a company has no other office premises but the flat, and where any business of that company is conducted by its director from the flat, where all the company’s documents are stored, the facts of this case are four-square with the second illustration given by Lord Denning MR in Cheryl Investments Ltd v Saldhana[1978] 1 WLR 1329 at 133 (the italicised words are in the reported judgment): “Second, take the case where a professional man takes a tenancy of one house for the very purpose of carrying on his profession in one room and of residing in the rest of the house with his family, like the doctor who has a consulting room in his house. He has not then a ‘regulated tenancy’ at all. His tenancy is a ‘business tenancy’ and nothing else. He is clearly occupying part of the house ‘for the purpose of’ his profession, as one purpose; and the other part for the purpose of his dwelling as another purpose. Each purpose is significant. Neither is merely incidental to the other.” “Second, take the case where a professional man takes a tenancy of one house for the very purpose of carrying on his profession in one room and of residing in the rest of the house with his family, like the doctor who has a consulting room in his house. He has not then a ‘regulated tenancy’ at all. His tenancy is a ‘business tenancy’ and nothing else. He is clearly occupying part of the house ‘for the purpose of’ his profession, as one purpose; and the other part for the purpose of his dwelling as another purpose. Each purpose is significant. Neither is merely incidental to the other.”
“32. There is no dispute that the burden here is on the Defendant to show a (subjectively) firm and settled intention, not likely to be changed, to occupy the flat for the purpose of its business, and (objectively) a reasonable prospect of being able to bring about that subjective intention. See, for example, Dolgellau Golf Club v Hett(1998) 76 P & CR 526 at 531 per Auld LJ.”
“51. In reliance on these authorities, Mr Gatty submits that save in exceptional circumstances, for example as in the Lee-Verhulst case where there was real control retained and exercised, the landlord does not occupy the premises; the tenant does. The evidence from the Defendant is that the flat will be let on a standard tenancy granted pursuant to the Defendant’s homelessness function underPart VII of the Housing Act 1996 (which is not a secure tenancy: seeHousing Act 1985 Schedule 1, para 4), under which the tenants would be the exclusive occupiers. The flat would not therefore be occupied by the Defendant (other perhaps than temporarily whilst refurbishment works were carried out, but that would not be enough for occupation: see Jones v Jenkins, paragraph 47 above). 52. Mr van Tonder accepted that on the authorities whether the Defendant would be in occupation was a question of control. He submitted that in accordance with the Defendant’s statutory duty, it intends to grant tenancies with exclusive possession, which are not secure tenancies, but because it is temporary accommodation, control remains with the Defendant.”
“53. In my view, the answer to this question is to be found by considering the duty on local authorities, such as the Defendant, to provide temporary accommodation, and the nature of that accommodation, and by considering the evidence upon which the Defendant actually relies.”
“62. Had the evidence been otherwise, and had the Defendant’s intention been to grant licences of temporary accommodation in fulfilment of its interim or relief duty, I think the position would have been that the Defendant might be said to retain a sufficient degree of control over the premises it lets or licences for use as temporary accommodation; the premises remain part of the Defendant’s resources to fulfil its statutory obligations, and the occupation of the applicant is no more than temporary and precarious with no rights under the 1977 Act because it is not treated as being their dwelling; all of the control in relation to the applicant’s occupation remains with the Defendant. I might therefore have concluded that the flat would be “occupied” by the Defendant for the purposes of section 30(1)(g). 63. However, the evidence before me, from Ms Felix-Adewale in cross-examination, was that the temporary accommodation would be granted pursuant to a tenancy and not a licence. That seems to me to take it out of the situation where the Defendant retains any control over the flat.”
“65. In my judgment, on the basis of the evidence before me, I conclude that the Defendant is not intending to use the flat for interim or relief accommodation, but for temporary accommodation pursuant to its main housing duty. Had the Defendant intended to mean interim or relief accommodation, it would have been on licence, not under a tenancy: see above. Since the evidence is that there would be a tenancy, it cannot be envisaged that it would be accommodation under the interim duty or the relief duty. It must therefore be temporary accommodation which is to be provided under the main housing duty until that duty comes to an end. 66.
“67. For the reasons set out above, my conclusions in relation to the two preliminary issues are as follows: (1) The Claimant did occupy the flat for the purposes, or partly for the purposes, of its business at the date of the expiry of the contractual term of the Lease. (2) The Defendant has not satisfied the ground of opposition contained in section 30(1)(g) of the 1954 Act.” (1) The Claimant did occupy the flat for the purposes, or partly for the purposes, of its business at the date of the expiry of the contractual term of the Lease. (2) The Defendant has not satisfied the ground of opposition contained in section 30(1)(g) of the 1954 Act.”
“114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc[1977] RPC1 ; Piglowska v Piglowski[1999] 1 WLR 1360 ; Datec Electronics Holdings Ltd v United Parcels Service Ltd[2007] UKHL 23 [2007] 1 WLR 1325 ; Re B (A Child) (Care Proceedings: Threshold Criteria)[2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie[2013] UKSC 58 [2013] 1 WLR 2477 . These are all decisions either of the House of Lords or of the Supreme Court.”
“i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
“31. In summary, such interference will only be justified where a critical finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached.”
“First, take the case where a professional man is the tenant of two premises: one his office where he works, the other his flat, conveniently near, where he has his home. He has then a " business tenancy " of his office and a " regulated tenancy " of his home. This remains the situation even though he takes papers home and works on them at evenings or weekends and occasionally sees a client at home. He cannot in such a case be said to be occupying his flat " for the purpose of " his profession. He is occupying it for the purpose of his home, even though he incidentally does some work there: see Sweet v. Parsley [1970] A.C. 132, 155 per Lord Morris of Borth-y-Gest. Second, take the case where a professional man takes a tenancy of one house for the very purpose of carrying on his profession in one room and of residing in the rest of the house with his family, like the doctor who has a consulting room in his house. He has not then a " regulated tenancy " at all. His tenancy is a " business tenancy " and nothing else. He is clearly occupying part of the house " for the purpose of " his profession, as one purpose; and the other part for the purpose of his dwelling as another purpose. Each purpose is significant. Neither is merely incidental to the other.”
“On that evidence I should have thought it plain that Mr. Saldanha was occupying the flat, not only as his dwelling, but also for the purposes of a business carried on by him in partnership with another. When he took the flat it was, no doubt, let to him as a separate dwelling. It was obviously a residential flat with just one large room with twin beds in it. No one can doubt that it was constructed for use as a dwelling and let to him as such within the test in Wolfe v. Hogan [1949] 2 K.B. 194, 204. But as soon as he equipped it for the purposes of his business of importing sea foods—with telephone, table and printed notepaper—and afterwards used it by receiving business calls there, seeing customers there and issuing business statements from there—it is plain that he was occupying it "for the purposes of a business carried on by him." This was a significant purpose for which he was occupying the flat, as well as a dwelling. It was his only home, and he was carrying on his business from it. It comes within my second illustration.”
“19. Mr van Tonder says that the position is no different from that of anyone with a “home office” or where a company director takes work home. However, it seems to me that where a company has no other office premises but the flat, and where any business of that company is conducted by its director from the flat, where all the company’s documents are stored, the facts of this case are four-square with the second illustration given by Lord Denning MR in Cheryl Investments Ltd v Saldhana[1978] 1 WLR 1329 at 133 (the italicised words are in the reported judgment): “Second, take the case where a professional man takes a tenancy of one house for the very purpose of carrying on his profession in one room and of residing in the rest of the house with his family, like the doctor who has a consulting room in his house. He has not then a ‘regulated tenancy’ at all. His tenancy is a ‘business tenancy’ and nothing else. He is clearly occupying part of the house ‘for the purpose of’ his profession, as one purpose; and the other part for the purpose of his dwelling as another purpose. Each purpose is significant. Neither is merely incidental to the other.” “Second, take the case where a professional man takes a tenancy of one house for the very purpose of carrying on his profession in one room and of residing in the rest of the house with his family, like the doctor who has a consulting room in his house. He has not then a ‘regulated tenancy’ at all. His tenancy is a ‘business tenancy’ and nothing else. He is clearly occupying part of the house ‘for the purpose of’ his profession, as one purpose; and the other part for the purpose of his dwelling as another purpose. Each purpose is significant. Neither is merely incidental to the other.”
“6. The nature of the business carried on at the property is a single tenancy dwelling” a single tenancy dwelling”
“32. There is no dispute that the burden here is on the Defendant to show a (subjectively) firm and settled intention, not likely to be changed, to occupy the flat for the purpose of its business, and (objectively) a reasonable prospect of being able to bring about that subjective intention. See, for example, Dolgellau Golf Club v Hett(1998) 76 P & CR 526 at 531 per Auld LJ.”
“84. In respect of the first issue, I accept that there was minimal evidence to support the Claimant’s case on whether the property was occupied by the company, but I was satisfied on that evidence that it was. I have already indicated that I have now changed my initial view on “controlling interest”.”
“18. Nonetheless, and despite the paucity of evidence in relation to precisely what work the Claimant is in fact doing, I find myself driven to accept Mr Moaven’s evidence that the Claimant is carrying on business in respect of the 5 leases which it itself owns. In respect of those leases (as with the business model for the other 17 companies which I have described above) the Claimant collects rents from its sub-lessees and pays them to the superior landlord (the Defendant). That, in my view, is sufficient to establish that the Claimant is carrying on business for the purposes of section 23(1) of the 1954 Act, and I think that Mr Gatty is right when he says that a company can occupy a property through a manager: see for example Pegler v Craven[1952] 2 QB 69 at 74.”
“The case is one on which I, for my part, have felt some difficulty, but I have reached a different conclusion from that of the judge. I quite agree that the conception of "occupation" is not necessarily and in all circumstances confined to the actual personal occupation of the person termed the occupier himself. In certain contexts and for certain purposes it obviously extends to vicarious occupation by a caretaker or other servant or by an agent. Clearly the tenant of a retail shop who through persons in his employment carries on business there for his own benefit under a tenancy with respect to which he was tenant, would properly be described as the occupier of the shop and the person carrying on business there, though not himself in actual personal occupation of it. But I cannot regard the words " the occupier " of a shop " in section 10 (1) of this Act as going so far as to include as occupier, within the meaning of the subsection, a tenant who is not himself carrying on business on the premises in question at all either personally or by a servant or agent, but who is tenant of premises, the shop portion of which is in fact wholly taken up with the stock and the business of a limited company, that is, of an entirely distinct and different legal person.”
“52. Mr van Tonder accepted that on the authorities whether the Defendant would be in occupation was a question of control. He submitted that in accordance with the Defendant’s statutory duty, it intends to grant tenancies with exclusive possession, which are not secure tenancies, but because it is temporary accommodation, control remains with the Defendant.”
“62. Had the evidence been otherwise, and had the Defendant’s intention been to grant licences of temporary accommodation in fulfilment of its interim or relief duty, I think the position would have been that the Defendant might be said to retain a sufficient degree of control over the premises it lets or licences for use as temporary accommodation; the premises remain part of the Defendant’s resources to fulfil its statutory obligations, and the occupation of the applicant is no more than temporary and precarious with no rights under the 1977 Act because it is not treated as being their dwelling; all of the control in relation to the applicant’s occupation remains with the Defendant. I might therefore have concluded that the flat would be “occupied” by the Defendant for the purposes of section 30(1)(g). 63. However, the evidence before me, from Ms Felix-Adewale in cross-examination, was that the temporary accommodation would be granted pursuant to a tenancy and not a licence. That seems to me to take it out of the situation where the Defendant retains any control over the flat.”
“65. In my judgment, on the basis of the evidence before me, I conclude that the Defendant is not intending to use the flat for interim or relief accommodation, but for temporary accommodation pursuant to its main housing duty. Had the Defendant intended to mean interim or relief accommodation, it would have been on licence, not under a tenancy: see above. Since the evidence is that there would be a tenancy, it cannot be envisaged that it would be accommodation under the interim duty or the relief duty. It must therefore be temporary accommodation which is to be provided under the main housing duty until that duty comes to an end. 66.
“A further element is introduced into the problem when the business of one person consists of permitting others to use his property for their business purposes, so that in the result both exercise rights over the same property for the purposes of their own separate businesses. In some Q circumstances the landowner will remain in occupation of the whole even though his business consists of permitting others to come onto the property and use it temporarily for their business purposes. Instances are an hotel company which provides rooms and facilities once a month for an antiques fair, or a farmer who permits his fields to be used periodically for a car boot sale. At the other extreme are cases where the landowner permits another to enter and carry on his business there to the exclusion " of the landowner. An instance would be a person who carries on a business of letting office accommodation. He acquires a lease of property, which he sublets. Under the sublease he has the usual right as landlord to enter the sublet property for various purposes, and he derives financial profit from the property in the form of rent, but plainly he would not occupy the property.”
“To look for a clear line between these instances would be to seek the non-existent. The difference between the two extremes is a difference of degree, not of kind. When a landowner permits another to use his property for business purposes, the question whether the landowner is sufficiently excluded, and the other is sufficiently present, for the latter to be regarded as the occupier in place of the former is a question of degree. "It is, moreover, a question of fact in the sense that the answer depends upon the facts of the particular case. The circumstances of two cases are never identical, and seldom close enough to make comparisons of much value. The types of property, and the possible uses of property, vary so widely that there can be no hard and fast rules. The degree of presence and exclusion required to constitute occupation, and the acts needed to evince presence and exclusion, must always depend upon the nature of the premises, the use to which they are being put, and the rights enjoyed or exercised by the persons in question.”
“Since the question is one of degree, inevitably there will be doubt and difficulty over cases in the grey area. Where the permission takes the form of the grant of a tenancy, there will usually be little difficulty. Ordinarily the tenant, entitled to exclusive possession of the offices or factory or shop, will be the occupier, not the landlord. This will be so even though the lease reserves to the landlord the usual rights to enter and inspect and repair, and even though the lease contains a user covenant, strictly limiting the use which the tenant may make of the demised property. In such cases the property is occupied by the tenant because he has a degree of sole use of the property sufficient to enable him to carry on his business there to the exclusion of everyone else. Although there will usually be little difficulty in landlord and tenant cases, this may not always be so. I would not rule out the possibility that, exceptionally, the rights reserved by a landlord might be so extensive that he would remain in occupation of the demised property. Where the permission takes the form of a licence there will often be more room for debate. The rights granted by a licence tend to be less extensive than those comprised in a tenancy. In the nature of things, therefore, a licensor may have an easier task in establishing that he still occupies. This should occasion no surprise. The Act itself draws a distinction between tenants and licensees, protecting the former but not the latter.”
“51. In reliance on these authorities, Mr Gatty submits that save in exceptional circumstances, for example as in the Lee-Verhulst case where there was real control retained and exercised, the landlord does not occupy the premises; the tenant does. The evidence from the Defendant is that the flat will be let on a standard tenancy granted pursuant to the Defendant’s homelessness function underPart VII of the Housing Act 1996 (which is not a secure tenancy: seeHousing Act 1985 Schedule 1, para 4), under which the tenants would be the exclusive occupiers. The flat would not therefore be occupied by the Defendant (other perhaps than temporarily whilst refurbishment works were carried out, but that would not be enough for occupation: see Jones v Jenkins, paragraph 47 above).”
“52. Mr van Tonder accepted that on the authorities whether the Defendant would be in occupation was a question of control. He submitted that in accordance with the Defendant’s statutory duty, it intends to grant tenancies with exclusive possession, which are not secure tenancies, but because it is temporary accommodation, control remains with the Defendant.”
“6. The learned judge erred in law in concluding that the Defendant failed to establish its ground of opposition under s.30(1)(g) by resting that conclusion on the nature of the arrangements between the individuals whom the Defendant intended to let into possession of the Property in the discharge of a statutory duty underPart VII of the Housing Act 1996 to provide temporary accommodation rather than having any or any sufficient regard to the fact that the Defendant’s business included the discharge of that statutory duty.”