The Local Authority were lessees of some 500 square metres of public open space at St. Johns Hill in Wandsworth, which they and their horticultural sub-contractors visited periodically. It had been used by local inhabitants for leisure and recreation.
Held: The use was sufficient to constitute occupation: ‘The concept [of sufficiency of physical presence and of use] was whether the occupation of the premises by the tenant were shown to be such as Parliament tended to be covered by the words used in s.23(1) and (2).’
Ralph Gibson LJ said: ‘If it is shown that the tenant, having possession of the premises and having given to no person the right to exclude the tenant from any part of the premises or to limit the tenant’s access thereto, is by himself, his servants or agents physically present on the premises to such extent and exercising control of them to such extent as would reasonably be expected having regard to the nature of the premises and the terms of the tenancy, and is so present and exercising control for the purposes of the business or activity carried on by the tenant, then for my part it would seem likely at least that an observer, knowing the facts and applying the ordinary and popular meaning of the phrase ‘occupation for the purposes of a business or activity’, would hold that tenant to be in occupation.
I accept, of course, that a tenant who has a right to possession may choose not to go into actual occupation, and, as set out above, the authorities show that ‘occupation’ for the purposes of section 23 means actual occupation in the popular sense of that word. But if, as is clear from Eveleigh LJ’s judgment in Hancock and Willis v GMS Syndicate, the physical occupation need not be continuous provided the right to occupy continues, then the sort of occupation to which I have referred should in most cases qualify.
That which is a minimum sufficiency of physical presence or control cannot, in my view, be determined by the court independently of the facts of a particular case by reference to the number of visits per day or per week or per month. When the facts of a particular case are regarded, as they must be, I can see no standard for the judgment of the minimum sufficiency of physical presence or control in a case where there are no subtenants or licensees competing for the role of occupier other than that established by the nature of the premises in question regarded in the light of the statutory purpose, which is to enable tenants occupying property for business purposes to obtain new tenancies in certain cases, as enlarged by the provision to include an activity carried out by a body of persons.’ and
‘. . . this was not a borderline case but a clear case. The council were physically present upon and exercised control over the piece of land by their servants or agents at least as much as would, in my judgment, be reasonably expected by the parties to the lease when it was made. If the ordinary man, knowing the facts, were asked: ‘Who is in occupation of this open space?’, I have no doubt whatever that, applying the ordinary and popular meaning of the word, he would answer ‘The council is’. No one else is. The council is there, as necessary, to do all that is required to maintain the place in decent order for use by the public.’
Ralph Gibson LJ
[1991] 89 LGR 75
Landlord and Tenant Act 1954 23
England and Wales
Cited by:
Cited – Graysim Holdings Ltd v P and O Property Holdings Ltd HL 24-Nov-1995
A market hall had been let to a tenant under a lease. The tenant fitted out the entire hall with stalls and entered into agreements with the stallholders, by which they paid the tenant a rent and service charge for services provided by the tenant. . .
Cited – Bacchiocchi v Academic Agency Limited CA 20-Feb-1998
The ‘continuous occupation’ required of a tenant to support a claim for disturbance on the non-renewal of his lease under the Act is not to be lost for the normal incidents of business life. The tenant had anticipated the non-renewal of the tenancy . .
Cited – Clear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 27 December 2021; Ref: scu.216543