Pointon York Group Plc v Poulton
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Hooper,Lord Justice Hughes |
| Judgment Date | 13 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1001 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C6/2006/0171 |
| Date | 13 July 2006 |
[2006] EWCA Civ 1001
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM NORTHAMPTON COUNTY CO
HIS HONOUR JUDGE CHARLES HARRIS QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Hooper and
Lord Justice Hughes
Case No: C6/2006/0171
5LE5076
Paul De La Piquerie (instructed by Messrs Andrew Ford, Leicester) for the Appellant
Mark Wonnacott (instructed by Messrs Harvey Ingram, Leicester) for the Respondent
This appeal arises out of section 23(1) of the Landlord and Tenant Act 1954 ("the 1954 Act") which provides as follows:
"Subject to the provisions of this Act, this Part of this Act applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes."
There are two issues of law:
Issue 1Were the parking spaces which the respondent had the right to use under a lease granted by the appellant "premises" which could be "occupied" by the respondent for the purposes of section 23 of the 1954 Act?
Issue 2 Were the facts found by the judge as to occupation of the offices also comprised in the lease in the period 21 st to 23 rd June 2005 capable in law of constituting occupation for that purpose?
In my judgment, both questions should be answered in the affirmative for the reasons given below.
I can take the central facts from the judgment of the judge:
"1.The defendant by a lease dated 7 August 1990 let a suite of offices on the first floor of a building called The Crescent, King Street, Leicester, to the claimant, a financial services group. The lease expired at midnight on 23 June 2005. She also let three other units of accommodation in The Crescent to the claimant company which had a presence in her building for some 35 years. On 15 June 1998 the claimant sublet the first floor suite to a firm of solicitors, Bray & Bray. This underlease expired on 20 June 2005, three days before the termination of the lease from the defendant to the claimant.
2.At some stage during early 2005 Mr Pointon, the claimant's director and chief executive, after earlier discussions, negotiations and, perhaps vacillations, decided that the claimant would like to re-occupy the Bray premises and use them for business purposes after Bray & Bray had vacated. The defendant was told of this intention in May 2005.
…
4.On at least two occasions the claimant's personnel visited the premises in order to plan its use and to see how the painting and carpeting was getting on. These works were completed on 21 June 2005 when contractors engaged by Bray to fulfil their contractual obligations to the claimant were on the premises after the termination of the Bray lease. Mr Pointon visited on 21, talked to the carpet layers, confirmed that the works were suitable for his business occupation and left it to an associate to organise the necessary cabling and phone provision during the following week or two.
5.On 24 June 2005 the defendant changed the locks of the premises so that the claimant could not get into them and also clamped a number of cars which the claimant's employees had parked in parking bays of which they had the use pursuant to an 'easement or right' specified in a schedule to the lease between the defendant and the claimant.
…
10.The following facts are agreed or found. (1) During the period of time between the expiry of the Bray lease and the expiry of the lease between the parties, the claimants had the intention to utilise the premises for business purposes and had communicated this to the defendant. (2) For the offices to be utilised it would be necessary for them to be decorated, carpeted and equipped with telephone and computer equipment. It would not have been realistically sensible or practicable to move in furniture and staff until such provision had been made. (3) At the material time the claimants were taking the view (a) that the decoration and carpeting which was being done by Brays to fulfil their obligations under the terminating lease would be satisfactory for the claimant's future business operations and, (b) that steps would be taken as soon as practicable after the carpeting was finished to install the computer and telephone equipment after which furniture and staff could move in. (4) There was no time to do the computer and cabling work during the three days between the expiry of the two leases. (5) During these three days the claimants had the right to control the premises and access to them under the terms of its lease. (6) Though Mr Pointon visited the premises during this time to observe progress and consider suitability, no financial services business was transacted by him there and no business equipment was put in. (7) At all material times the claimant continued to utilise its car parking spaces for business purposes.
…
13.The lease provided, not entirely grammatically, that 'The Landlord hereby demises to the tenant all that the demised premises together also (in common with the landlord and its tenants and the occupiers of the premises adjoining or near to the demised premises and other persons at any time having like rights) with the easements and rights specified in the second schedule hereto in connection with the business of the tenant in the demised premises …' The schedule referred to was in the following terms under the heading 'rights granted by the tenant': 'The right during normal business hours for all purposes connected with the use by the tenant of the demised premises (a) to use the parking spaces subject to the rights of the landlord to substitute equivalent alternative parking spaces … and to pass for all purposes with vehicles over the roads forming part of the external common parts …'"
The Judgment of His Honour Judge Charles Harris QC dated 21 December 2005
On the first issue, the judge held that both as a matter of language and common sense a parking space could be occupied (judgment paragraph 21) . He therefore concluded that, though the right to occupy the parking spaces might be described as an incorporeal hereditament, it was also property which could be occupied for the purposes of a business. He further found that the parking spaces could be premises, that they were comprised in the tenancy and that they were in fact occupied. He therefore concluded that the office tenancy was a protected one. No point is taken by the appellant that the respondent was using the parking spaces for business purposes albeit that the business use was not that of the business being carried on in the offices.
On the second issue the judge held that at the material time the respondent had the right to exclude others from occupation. He noted that it was conceded that, if in the three days between the expiry of the two leases Mr Pointon of the respondents had moved in a desk and made calls from it, business occupation would have been established. He held, however, on the basis of Bacchiocchi v The Academic Agency [1998] 1 WLR 1313 that it was unnecessary that there should be any physical presence in the premises provided the premises were being used in connection with a business activity. If physical presence had been necessary he would have held that that was satisfied by the existence of the carpet layer and Mr Pointon. Although the carpet layer had been engaged by Bray & Bray the work he was doing was providing carpets which the respondent wanted and needed for business purposes as well as for their own compliance with the duties to their own landlord should they go out of possession. He held that the activities of the carpet layer and Mr Pointon, who was "invigilating progress towards readiness to commence work, and planning what it would be necessary to install", were activities which could "without straining language, be properly described as incidental and necessary to the running of the business."
The judge therefore made an order that the respondent was in occupation of the property for the purposes of section 23 of the 1954 Act so that the tenancy was continuing by virtue of Part II of the 1954 Act and so that the respondent's notice dated 8 July 2005 was a valid notice.
Issue 1
I have set out this issue above. In my judgment the right conferred by the lease dated 7 August 1990 to use the seven parking spaces specified in the lease constituted "premises" which could be "occupied" by the respondent for the purpose of section 23 of the 1954 Act and on the facts found by the judge were in fact occupied by the respondent. The appellant does not seek to disturb this latter finding of fact. I set out my reasons below. In summary my reasons for this conclusion are:
(i) it is clear on the authorities that an incorporeal hereditament can be "premises" and can be "occupied";
(ii) this particular incorporeal hereditament was capable of occupation;
(iii) whether there is "occupation" of any property is a matter of fact and degree;
(iv) the facts as found by the judge amounted to occupation of premises for the purposes of section 23.
Mr De La Piquerie, for the appellant, accepts that an incorporeal right constituted "premises" for the purposes of section 5 of the Landlord and Tenant Act 1927 ("the 1927 Act") but submits that this is not the position under the 1954 Act. The 1927 Act was repealed and replaced by the Landlord and Tenant Act 1954. Section 32(3) of the 1954 Act now provides that, when a new tenancy is ordered, the rights included in the original tenancy are included. Mr De La Piquerie submits that this...
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