An existing outline planning permission to develop land to include a parade of 12 shops in central London. In 1968 Pan American Airways Corporation took a sub-lease of the land and got planning permission to develop it as an air terminal for a period of 14 years, terminating (with an extension) on 31 March 1984. PanAm vacated the land in 1981 and paid unoccupied rates until 31 March 1984. The owner commenced work to return the land to its ‘shell condition’, as it was before PanAm’s occupation. On 30 March 1984 Westminster City Council issued a notice under the Health and Safety at Work Act etc 1974 requiring the company to cease work until specified remedial work had been carried out to remove brown asbestos. That work was completed on 21 May 1985. The Council levied an unoccupied rate for the period between 1 April 1984 and 25 December 1985. The magistrates’ court ordered the issue of a distress warrant against the company in respect of the unoccupied rates. The Divisional Court had held that the owners were exempt from liability for rates for the period between 1 April 1984 and 21 May 1985 by virtue of paragraphs 2(a) and 2(b) of Schedule 1 to the General Rate Act 1967 which provided: ‘No rates shall be payable under Part 1 of the Schedule in respect of a hereditament for, or for any part of the standard period beginning with the day following the end of, any period during which:
(a) the owner is prohibited by law from occupying their hereditament or allowing it to be occupied;
(b) the hereditament is kept vacant by reason of action taken by or on behalf of . . any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it.’ After 21 May 1985 no exemption was due since implementation of the earlier planning permission was possible and occupation was not, therefore, prohibited by law. The rating authority appealed to the Court of Appeal in respect of the earlier period and the owner cross-appealed in respect of the subsequent period.
Held: There was no evidence to support the conclusion that by its notice the local authority was intending to prohibit the occupation of the hereditament within the meaning of paragraph 2(b). Therefore, the sole issue with regard to the earlier period was whether during that period the owner was ‘prohibited by law’ within the meaning of paragraph 2(a) from occupying or allowing the hereditament to be occupied. The argument for the rating authority was that the notice did not prohibit occupation. The Health and Safety at Work Act etc 1974 contained no power to prohibit occupation. The statutory powers were aimed at prohibiting an activity upon premises.
Having considered the Tower Hamlets case, Glidewell LJ expressed no doubt that the decision was correct. However, he did not consider that Tower Hamlets provided the answer to the instant case. He identified the question to be considered as follows: ‘Where the effect of a prohibition notice is proved to be that the hereditament may not be rateably occupied until some steps have been taken, is its occupation prohibited by law?’ and he answered: ‘The factual position here was that the planning permission for use as an air terminal expired on the 31 March 1984. Thereafter during the period at issue, there was no use of the hereditament for that purpose for over two years after PanAm vacated. In order that the hereditament might be occupied for some other commercial purpose, the respondent company needed to return it firstly to its original condition as a shell. It was the work necessary to put it in that condition which was prohibited by the notice. This, therefore, had the inevitable effect of preventing rateable occupation until both the remedial work to cure the asbestos problem and the subsequent refurbishment work had been carried out. Since that was the inevitable effect, in my judgment the effect of the notice was to prohibit by law the occupation of the premises until the remedial work had been completed. That was on the 21 May 1985. It followed that the owner was exempt from the unoccupied rate for the period between 1 April 1984 and 31 May 1985.’
As to the cross-appeal, however, it will be recalled that the removal of brown asbestos, ‘the remedial work’, was completed on 21 May 1985. The owner’s case was that, since there was no longer extant planning permission for the use of the property in its current condition, it was prohibited by law from occupying the property. Having considered the authorities, Glidewell LJ concluded: ‘In my judgment, the law does not prohibit an owner or occupier of property from using it for a particular purpose simply because planning permission for that use is necessary under the Town and Country Planning Act 1971 and has not been granted. Such a use becomes prohibited if, and only if, an enforcement notice is served and takes effect, or a stop notice is served, or if by other processes an injunction is granted against that particular use.’
Judges:
Glidewell LJ, Mann LJ and Sir Denys Buckley
Citations:
[1990] RA 121
Jurisdiction:
England and Wales
Cited by:
Cited – Pall Mall Investments (London) Ltd v Gloucester City Council Admn 8-Jul-2014
The land-owner appealed by case stated against an assessment to unoccupied, non-domestic rate demands. The land-owner said that they were unoccupied through dilapidations and therefore exempt. They said that the court had wrongly disregarded their . .
Lists of cited by and citing cases may be incomplete.
Rating
Updated: 20 May 2022; Ref: scu.533874