The Queen (on the application of the Secretary of State for Health and Social Care on behalf of Public Health England) v Harlow District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 16 April 2021 |
| Neutral Citation | [2021] EWHC 909 (Admin) |
| Docket Number | Case No: CO/2122/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2021 |
[2021] EWHC 909 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
Case No: CO/2122/2019
Ms Jenny Wigley (instructed by Davitt Jones Bould Limited) for the Claimant
Ms Kelly Pennifer (instructed by Greenhalgh Kerr Solicitors LLP) for the Defendant
Hearing dates: 23rd and 24th February 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The court must now return to the question of what constitutes occupation of premises for non-domestic rating purposes, explored in many cases down the years; in recent times notably by Wilkie J in Sunderland CC v. Stirling Investment Properties LLP [2013] EWHC 1413; by HHJ Jarman QC in R (Makro Properties Limited) v. Nuneaton & Bedworth BC [2012] EWHC 2250 (Admin); and by myself in R (Principled Offsite Logistics Ltd) v Trafford Council [2018] EWHC 1687 (Admin).
The claimant's ( PHE's) challenge is to the defendant's ( Harlow's) decision dated 26 February 2019 refusing to recognise PHE's claim to a three month exemption from payment of unoccupied non-domestic rates starting on 28 June 2018, following a period of claimed occupation (from 1 May to 27 June 2018) by PHE of its premises in Harlow which are its future national headquarters.
The conventional starting point for determining whether premises are occupied for rating purposes is to apply the four tests derived from Tucker LJ's judgment in JS Laing v Kingswood Area Assessment Committee [1949] 1 KB 344, 350:
“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.”
However, the third of these four requirements has given rise to difficulties which this case provides an opportunity, I hope, to resolve.
To that end, there are two annexes to this judgment. The first (A) states what I believe are correct propositions of law that will enable district judges to determine most if not all disputes of this kind. They comprise Tucker LJ's first, second and fourth propositions and incorporate an expanded version of the third one. The propositions are only a checklist and should not be taken as anything like a complete statement of law that has evolved over centuries.
The second annex (B) sets out a suggested protocol for swift and efficient determination of such disputes, in a manner that should save time and costs, reduce unnecessary controversy and avoid the need to bring disputes of this kind frequently to the higher courts. If it is not followed, the parties resistant to it could find district judges or other courts disposed to impose costs sanctions against them.
Facts
The claimant is, for the time being, charged with protecting the nation's health and wellbeing. It owns the Glaxo Smith Kline Building in Harlow, Essex, ( the property) which it purchased in 2017 from Glaxo Smith Kline, the well known pharmaceutical company. Harlow is the local billing authority for non-domestic rates. On 12 March 2018, Harlow issued a demand to PHE for £2. 50444 million for the 2018–19 financial year.
PHE's policy is (or was at the time) to pay invoices without argument and claim money back afterwards if the amount paid turns out to be disputed. PHE therefore paid Harlow the sum demanded on or about 1 April 2018. PHE then sought advice from rating agents then known as GVA (now, Avison Young) on how to mitigate rates liability.
GVA advised, as explained by Mr David Baughan of PHE in his witness statement:
“.… that genuine occupation of the site for a continuous period of six weeks, would give rise to relief being granted for three months following vacation of the hereditament. Furthermore, that to show rateable occupation PHE could store items/records which were of value to our organisation for that period.”
PHE therefore moved certain chattels into the property with the intention of occupying it during the six week period from 1 May to 27 June 2018. On 1 May 2018, about 30 crates of documents were moved into the property from PHE's current headquarters in Colindale, London. Mr Baughan's evidence is that the documents were records which PHE needed to, or might on review decide that it needed to, retain pursuant to its document retention policy as part of its organisational memory.
An inventory of the crates was kept, including a description of their contents. Some of the documents were about an outbreak of swine flu in 2009. Others related to public health records of research done and contracts made in furtherance of PHE's work. There were documents about staff training records, service level agreements, building plans and deeds and other “corporate records” (as described in the inventory) of various kinds.
Ms Alexandra Joseph of GVA emailed Harlow on 1 May 2018 informing Harlow that PHE was now “in occupation of this hereditament”. Harlow responded the next day asking for an internal inspection of the property. The first such inspection took place on 10 May 2018, attended by, among others, Ms Jan Smith and Ms Donna Beechener, both of Harlow's revenue and benefits department.
Ms Smith took notes and some photographs. She saw the boardroom table with chairs round it and electronic equipment, suitable for corporate board meetings. They were much the same on that day as when she later photographed them, in December 2018. Ms Smith and Ms Beechener were treated to coffee and biscuits. It was explained to them by PHE staff that “30 to 40 crates” had been moved to the property; and that the boardroom was used for occasional meetings as it was close to Addenbrookes Hospital.
Mr David Allen, in charge of storage of PHE's records, explained in his witness statement:
“In order to clarify the position I can confirm that the boardroom furniture and the tea and coffee making facilities, which had been left at the Property by the previous owners Glaxo Smith Kline, have been used occasionally for meetings when PHE staff and project directors visit the site. These meetings were to discuss the future development and promotion of the site and were of frequency that was no greater than would be reasonably be expected for a project of this size and complexity. The maintenance staff were housed in another building and only visit the building for maintenance purposes. To the best of my knowledge it was only used on an occasional basis by senior PHE staff for the purposes of promoting the development of the site as you would expect with any major redevelopment programme.”
Ms Smith's handwritten note made during her visit on 10 May 2018 records:
“Come here regular to keep eye on it. 30 – 40 crates. Clinical scientist on sabbatical for a year or so. Moved his stuff for 6–8 weeks then putting it back. Move some people out. Mainly storage + have meetings here as close to Addenbrooks (hospital).”
Ms Smith saw what she thought were about 20 to 25 crates at the property, which would have fitted into the back of a small transit type van. Only a small proportion of the property was taken up by these crates. Ms Smith and Ms Beechener were not permitted to open the crates and inspect their contents, for reasons of confidentiality, it was explained to them. They also saw certain cleaning products and electric floor polishers, which Ms Smith photographed.
Ms Smith considered that the crates could just as well have been stored at PHE's Colindale premises. Harlow decided to seek legal advice. A further inspection of the interior of the property was arranged and took place on 20 June 2018. Again, Ms Smith and Ms Beechener attended. The cleaning materials and floor polishers were still there. This time, they were allowed to view and photograph the contents of three crates, though PHE's project manager who was present was concerned about confidentiality.
The first crate contained, according to Ms Smith's statement:
“several empty boxes, promotional materials and obsolete stationary relating to the Health Protection Agency which ceased to exist in 2013 when it became a part of the Claimant, a Christmas gift from Fortnum and Mason, a very old Nokia mobile phone and a Blackberry…. [a]nd a number of folders, in which were printed emails from 2005 – 2009. The names on the emails included [ names given – former employees]”.
The second crate they opened contained, Ms Smith explains:
“a number of lever arch files which were marked so as to suggest that they contained IT documents from 2009 and 2010. The folders were marked on the outside with a red “X”, which I understand to be commonly used to denote documents that can be destroyed. The crate also contained tender documents from 2005 relating to the Health Protection Agency which as stated above ceased to exist in 2013.”
And, Ms Smith states, the third crate contained:
“a further copy of the Health Protection Agency's 2005 tender document, the box contained a further 2010 tender document along with various papers dated 1993.”
On 27 June 2018, at the end of the six week period, PHE moved the crates out of the property and back to their Colindale premises. GVA sought confirmation from Harlow that it...
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