O'Brien v Clark

This is an adjourned application for permission to appeal against a decision of the Lands Tribunal, Mr Trott, dated September 2006. It came before me on 8 November 2006 when Mr O’Brien appeared in person. The case concerns a plot of land on the north-west side of Penge Road which was at one stage used for an advertising hoarding. The issue as it appeared before me was what time the plot should have ceased to be listed as a hereditament in the rating list, the relevant period in dispute being between January 2001 and July 2002. It was common ground that from the latter date it was properly removed from the list, upon “the cessation of the use by removal of the very structures by means of which it was exercised” (as the tribunal put it),

When it came before me I had some difficulty in following the route taken by the tribunal through the somewhat esoteric provisions governing the subject. In any event, Mr O’Brien agreed that it would be sensible to adjourn the matter so that the case could first proceed before the tribunal on the question of valuation, which would determine the financial significance of the issue.

That having been done Mr O’Brien still wishes to pursue the original question about liability between January 2001 and July 2002. I have been helped very much by submissions from Mr Singh on behalf of the Valuation Officer, and indeed the Valuation Officer, Mr Harding, who originally appeared, has kindly attended court.

What is clear from Mr Singh’s submissions is that my difficulties in following the precise route through the statutory regulations were not wholly surprising, because in fact the tribunal seems to have misunderstood the way in which the case was being put by the Valuation Officer. Happily I think it is not necessary to go into that in any detail. The case for the Valuation Officer, in layman’s terms, is that either the property was occupied, and occupied beneficially, and satisfied the four classic tests for a hereditament, or it was not occupied, in which case he can rely on a provision of the relevant legislation which relates to land used for advertising hoardings, and enables it to be treated as occupied by the owner, even if it is not in fact occupied.

Mr O’Brien maintains that the land ceased to be used after 1 January 2001, and therefore was not correctly described as land used for advertising under the meaning of the section. He refers to what Lord Cranworth said in 1865, where he referred to the nature of beneficial occupation:

“It was not meant to impose the duty of contributing to the relief of the poor really because he might be the occupier of a barren rock neither yielding nor capable of yielding any profit from its occupation.”

Now it seems to me that that aspect of the case was effectively dealt with by the tribunal on the facts, Mr Trott, in paragraphs 22 to 25 of his decision because he considered and rejected the argument that the property was “struck with sterility”. So it seems to me there is nothing left of that particular argument.

Where the confusion seems to arise is that Mr Trott seemed to think it was unnecessary to consider whether there was “actual occupation” (see paragraph 20 of his decision). However, it seems to me difficult in a common sense world to hold that he was in beneficial occupation but not in actual occupation. Certainly I do not regard that as a point which would justify prolonging this case by allowing a full appeal to this court. Mr O’Brien raised another point which he said was linked to a European irectives. However, it seems to me that he was not able to refer to any specific European law which affects this issue and it does not seem to me that there is anything in that point either.

I am sorry that I have had to prolong this case for some time as a result of the uncertainties, but I am quite satisfied now that it would not be in Mr O’Brien’s interest to grant permission, even if I thought there were grounds for doing so. I see no prospect of him successfully pursuing an appeal, or gaining any practical advantage, even if the matter were returned to the Lands Tribunal. The only result of giving permission to appeal would be needless expense.

So I am afraid, Mr O’Brien, I must dismiss this. Thank you for your help.