“There are two classes of stallholder on the market ground, namely regular stallholders referred to in the said Conditions and also casual stallholders: the latter are not referred to in the Conditions. It is important to observe that a p101 regular stallholder does not generally occupy the same stall on each of the five days in the week on which he may attend the market; but he does occupy the same stall on the several days of the week on which he attends and that stall is the stall in respect of which he has become by usage the regular stallholder. In other words a regular stallholder will always occupy stall A on a Monday, stall B on a Wednesday, stall C on a Thursday and so on. The regular stallholders are persons who by virtue of long attendance in the market have attained a privileged position in respect of a particular stall or stalls which entitles them, by what can only be described as a local market custom, to the prior claim to a certain stall on the day of the week on which he is the regular stallholder in respect of that stall. But in order to become a regular stallholder or, more accurately, to graduate from being a casual stallholder, regular attendance at the market over a number of years is required and careful records on a points system are kept by Mr Poulter and his staff. Whereas a regular stallholder will on arrival at the market proceed directly to his regular stall for that day, to which he seems to be entitled not as of right but by what we have for convenience earlier referred to as a local market custom, a casual stallholder has no such prescriptive entitlement: he must rely on the allocation by the Markets Manager of a stall which is for the time being vacant. These matters are governed by the various sub conditions of Condition 3, but clearly local custom takes the matter considerably further than the mere letter of those conditions. It is apparent from sub condition 3.1. that one of the ways in which a stall may become available for casual occupation is by reason of the nonattendance of the regular stallholder by 10 am and in this event the provisions for payment contained in sub condition 5.1. become operative. Having attained the status of a regular stallholder a trader is bound to pay for his stall whether he occupies it or not and by reason of sub condition 3.5. a regular stallholder will lose his privileged status if he fails to pay for his stall for three consecutive weeks. The Tribunal having found that there was the “quality of exclusivity” as when a regular trader was in occupation “no other trader can sell from that stall” and as such held that there was a “licence to occupy land”. 43. In Firs W B Enever v Commissioners of Customs and Excise (1537, 1983) the Tribunal (Neil Elles (Chairman)) recorded that: “Since sometime in 1977 the Appellant has been organiser and promoter of Antique Fairs which are held on Sundays. She started this as a hobby, but it has grown considerably in size. The general method adopted by her is to enter into contracts with hotels or public houses for the hire of rooms on a regular basis. Having hired a room for a specified date she organises an Antique Trade Fair to take place. She advertises this Trade Fair in suitable Trade Journals and newspapers, and lets out spaces in that room to antique traders who reply to these advertisements. The Appellant never takes part in selling but is present at these Antique Trade Fairs where she charges an admittance fee to members of the public, but not to traders taking part in the fair. We accept that the proceeds of these admission fees are given to charity. The Appellant gave evidence which we accept that she had a contract with the Cumberland Hotel on a yearly basis for the hire of the Anglia Suite several times a year. She also had an annual contract with the Seven Hills Hotel at Cobham. No written contracts were produced to this tribunal but we find as a fact that contracts were entered into orally and were normally followed by letters of confirmation. In the case of the Cumberland Hotel the Appellant hired the Anglia Suite together with the necessary tables and trestles. What the Appellant did was to allocate numbered tables to participating dealers, and a sketch of such allocation (Exhibit A2) was produced to this tribunal at the conclusion of the hearing.” 44. The issue in that case, clearly similar to that in the present case, was whether the Appellant in letting out space to antique dealers was making exempt supplies. The Tribunal concluded: “In our unanimous judgment the allocation to Trade Dealers of "mobile" tables and trestles by reference to numbers on a sketch map not drawn to scale falls far short of amounting to a grant of the interest in or right over land or of any licence to occupy land. The right to hire such mobile tables and trestles seems to us to be fundamentally different from the grant of a right to use an established stall in a statutory market as in the Tameside Case. In our view what was granted in the present case was the right to use specified facilities in the Anglia Suite or other place. In our judgment the supply of such services for a consideration are taxable supplies chargeable with value added tax. 45. Miller Freeman World-Wide Plc v Commissioners of Customs and Excise (15452, 1997) concerned a business, Blenheim, organising exhibitions and conferences and the question for the Tribunal (R K Miller (Chairman)) was principally whether the supplies were to be regarded as “advertising services” or grants of licences to occupy land. The Tribunal noted: “25. At some stage the specific area of the exhibition floor, the space which the exhibitor has contracted for, has to be determined and allocated. That time cannot be later than when work to erect the stand or, if it is a shell, to complete the stand commences. From then or at any rate when the exhibitor takes physical possession of the stand until the end of his clearing up of the stand after the exhibition has closed the exhibitor does have exclusive occupation of land, being that specific area of the floor of the hall which is taken up by his stand, in that he alone or by his servants has the right to and actually enjoys the use of that space. Thus in my opinion the exhibitor does, when Blenheim in accordance with its contract with him provides to the exhibitor the space which he has contracted for and for which he has already paid (the evidence was that if he had not paid before the opening he would not be allowed in), the exhibitor does, to use the words of Russell LJ in the rating case Oswestry Corporation v. Hudd[1966] 1 ALL ER 490 ; at pp 496 and 498, in highlighting this as being a significant feature of a licence to occupy land, enjoy for a measurable period of time “a privileged position of special occupancy” in relation to a specific area of land. 26. It is obvious that the selling point made by Blenheim to potential exhibitors has to be the right to attend the exhibition and the opportunities for business that will give them. I accept that the success of Blenheim's business as an organiser of exhibitions depends upon its putting on exhibitions at which exhibitors get what they want so they come. That Blenheim's efforts as part of its business activities are also directed at trying to see that the right sort of potential customers turn up and in sufficient numbers makes the right of an exhibitor to be at the exhibition with his own stand likely to be more sought after. It increases the value of that right but not its nature, which is the right of the exhibitor to have his stand peculiar to him inside the exhibition to which his customers can come. The position in principle is no different to that of the stallholder with his own stall for the day in Tameside. That with a long established market, as in that case with competition amongst traders for available stalls, people come there to buy out of regular habit or because its existence is well known and so no special efforts on the part of the market owner are required to advertise it, is not in my view a significant difference changing the nature of what is being provided. 27. I can understand how an exhibitor may express his satisfaction with the quality and number of customers coming to his stand rather than singing the praises of his particular stand or its position, although some positions are bound to be more favoured than others. But that in my judgment does not mean that in substance and reality the true subject matter of the agreement between the organiser and exhibitor is simply the provision of an opportunity to meet potential customers (Blenheim has a disclaimer in its contract if expected customers or other exhibitors do not turn up) to which the occupation of land is merely ancillary. Having and occupying a stand at the exhibition is, as I have said, what viewed objectively is important, although of course that occupation of the land as with all occupation of land is for a purpose and not just for its own sake. 28. On those grounds in my judgment what in substance and reality Blenheim is providing to the exhibitor in return for the consideration which it receives is a licence to occupy land.”
“…the agreement does not prescribe any precisely defined area or space for the installation of the vending machines at the premises. … there is nothing to prevent the machines from being moved about, to a degree, as the site owner wishes. By contrast each stallholder is allocated a pitch by Mrs Zombory-Moldovan for the duration of the craft fair. 60. This case is also different to Walderdorff . Quite clearly, unlike Ms Walderdorff who, having reserved the right to do, so could fish in the same waters as the angling club to which she had leased the fishing rights, it would not be open under the T&C for Mrs Zombory-Moldovan, or indeed any other stallholder, to sell their crafts from a pitch she had supplied to a particular stallholder. 61. Therefore, having regard to all the circumstances of the case, we conclude that a stallholder occupies the pitch at a craft fair, allocated and supplied to him or her by Mrs Zombory-Moldovan, as owner to the exclusion of any other person. 62. Much was made of whether such a supply was a “passive” activity so as to bring it within the definition, under EU law, of the letting of immovable property. Miss McCarthy emphasises the comments of the ECJ in Temco at [20] (which we have set out at paragraph 34, above) in which it referred to the letting of immovable property being “usually a passive activity linked simply to the passage of time and not generating any significant added value from other activities which are either industrial or commercial in nature”
“… such as the exemptions referred to in Article 13B(b)(1) to (4) of the Sixth Directive, or have as their subject-'matter something which is best understood as the provision of a service rather than simply the making available of property, such as the right to use a golf course ( Stockholm Lindöpark AB (Case C-150/99 )[2001] STC 103 ,[2001] ECR I-493 , paragraphs 24 to 27), the right to use a bridge in consideration of payment of a toll ( EC Commission v Ireland (Case C0358/97)[2000] ECR I-6301 ) or the right to install cigarette machines in commercial premises ( Sinclair Collis Ltd v Customs and Excise Comrs , (case C-275-01)[2003] STC 898 ,[2003] ECR I-5965 , paragraphs 27 to 30).”