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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pointon York Group Plc v Poulton  EWCA Civ 1001 (13 July 2006)
Cite as:  EWCA Civ 1001,  29 EG 133,  38 EG 192,  L & TR 8,  1 P & CR 6,  3 EGLR 37
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
HIS HONOUR JUDGE CHARLES HARRIS QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE HUGHES
| Pointon York Group Plc
|- and -
|Ann Doreen POULTON
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mark Wonnacott (instructed by Messrs Harvey Ingram, Leicester) for the Respondent
Crown Copyright ©
Lady Justice Arden:
"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."
Issue 1 Were 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 21st to 23rd June 2005 capable in law of constituting occupation for that purpose?
"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
(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.
"Where the current tenancy includes rights enjoyed by the tenant in connection with the holding, those rights shall be included in a tenancy ordered to be granted under section 29 of this Act, except as otherwise agreed between the landlord and the tenant or, in default of such agreement, determined by the court."
" whenever business premises are empty for only a short period, whether mid-term or before or after trading at either end of the lease, I would be disinclined to find that the business occupancy has ceased (or not started) for that period provided always that during it there exists no rival for the role of business occupant and that the premises are not being used for some other, non-business purpose. That to my mind is how Part II of the Act of 1954 should operate in logic and in justice. It has nothing to do with the de minimis principle rather it is recognition that the tenant's business interests will not invariable require permanent physical occupation throughout the whole term of the lease and he ought not to have to resort to devices like storage of goods or token visits to satisfy the statutory requirements of continuing occupation. If, of course, premises are left vacant for a matter of months, the court would be readier to conclude that the thread of continuity had been broken.
In the present case it seems plain that having planned for some time on vacating the premises in late July through a misunderstanding of when the lease was to end, the tenant found it commercially sensible to stick to the plan even though ultimately he obtained no rent rebate (which no doubt is why he left the keys with the solicitors instead of giving immediate vacant possession to the landlord). All of this I regard no less an incident of normal business life and the events so regarded in the section 23 cases. Here, of course, unlike in those cases, the tenant when vacating the premises had no intention of returning. But that, as I observed earlier, is because the present context necessarily predicates the ending of the business tenancy. The court in Department of Environment v Royal Insurance PLC, just as Judge Bursell QC here, to my mind paid too much attention to the word "immediately preceding" and thereby overlooked the correct approach of the concept of continuing occupation as it applies at each end of the terms of a business tenancy. Had the ordinary section 23 approach been adapted to the present, different context, I have no doubt that on the facts this tenant must have been found entitled to the statutory compensation. I would therefore allow his appeal and alter Judge Bursell QC's order accordingly."
Lord Justice Hooper:
Lord Justice Hughes: