England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT from DISTRICT JUDGE BROWN
CHELTENHAM MAGISTRATES COURT 9 September 2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/07/2014

Lord Justice Pitchford :

Introduction

1. This is an appeal by way of case stated from the decision of District Judge ("DJ") Brown sitting at the Cheltenham Magistrates Court on 9 September 2013.
2. The appellant, Pall Mall (Investments) London Limited, is the owner of two properties at 67 and 69 London Road, Gloucester. They appear in the rating valuation list for Gloucester as office premises. They were built in the 1960s or 1970s. One is a 3 storey and, the other, a 5 storey office block. They are constructed of concrete and steel, with wall cladding and flat roofs. They are familiar representations of their time. The properties were unoccupied either by the owners themselves or by tenants during the years 2011, 2012 and 2013. The respondent, Gloucester City Council, made an unoccupied, non-domestic rate demand for each of these years in the total sum of £365,835. The appellant sought exemption on the ground that non-occupation was the result of dilapidations, caused at least in part by vandalism; the state of the properties was such that occupation was prohibited by law. The respondent refused the exemption and made an application to the magistrates' court for a liability order pursuant to regulation 12 of the Non-Domestic Rating (Collection and Enforcement) Local Lists Regulations SI 1989/1058. The judge rejected the appellant's argument that the properties were exempt and it is against that finding that the appeal is brought.
3. The questions posed for the decision of this court in the case stated by the judge are:

"1. Whether, in the absence of (i) a current applicable statutory provision directly prohibiting occupation, or (ii) a valid statutory notice prohibiting occupation, the court was correct to determine that both

(a) the fact that the properties were constructed as offices and were in disrepair; and

(b) the fact that the court had evidence from a surveyor that occupation of the properties for office use "would not comply with the numerous statutes covering general occupation and welfare, including provisions of the Health and Safety at Work Act etc. 1974, the Workplace (Health, Safety and Welfare Regulations 1992, and the Regulatory Reform (Fire Safety) Order 2005"

were insufficient grounds to support a conclusion that the owner of the properties was prohibited by law from occupying the properties or allowing them to be occupied within the terms of Regulation 4 (c) of the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008 SI 2008/386 (the "Regulations").

2. In the alternative, whether on finding that there was no prohibition in law on occupying part of the properties by an alternative storage use and in the light of the evidence from the surveyor that areas of the properties "could form an internal store, similar in effect to a garage lock-up and potentially suitable for a limited amount of storage of boxes at the premises", the court could determine that the possibility of storage use alone meant that the owner of the properties was not prohibited by law from occupying the properties or allowing them to be occupied within the terms of regulation 4 (c) of the Regulations, or whether it would have been necessary for the court first to consider whether the areas in question could be defined as separate parts of the properties."

The statutory scheme

4. Section 45 of the Local Government Finance Act 1988 sets the conditions for the liability of the rate payer to pay a non-domestic rate for unoccupied property, and provides the calculation for the payable rate. There is no dispute that the rate was properly calculated and due, subject to the issue of exemption. Section 45(1)(d) provided that the section applied if "the hereditament falls within a class prescribed by the Secretary of State in Regulations".
5. Regulations were made under the Act in the Non-Domestic Rating (Unoccupied Property) (England) Regulations SI 2008/386 ("the 2008 regulations"). Regulation 3 provides as follows:

"3. Hereditaments prescribed for the purposes of Section 45(1)(d) of the Act

The class of non-domestic hereditaments prescribed for the purposes of Section 45(1)(d) of the Act consists of all relevant non-domestic hereditaments other than those described in Regulation 4."

Regulation 4 sets out those hereditaments not prescribed for the purposes of section 45(1)(d) and therefore exempted from the unoccupied rate. It states, so far as is relevant for present purposes:

"The relevant non-domestic hereditament described in this regulation is any hereditament –

(a) which, subject to regulation 5, has been unoccupied for a continuous period not exceeding 3 months;

(b) which is a qualifying industrial hereditament that, subject to regulation 5, has been unoccupied for a continuous period not exceeding 6 months;

(c) whose owner is prohibited by law from occupying it or allowing it to be occupied; [or]

(d) which is kept vacant by reason of action taken by or on behalf of the Crown or any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it;

(e) – (m) ..."

For the purposes of paragraphs (a) and (b) of regulation 4, by regulation 5 a hereditament which has been unoccupied and becomes occupied on any day is to be treated as having been continuously unoccupied if it becomes unoccupied again on the expiration of a period of less than 6 weeks beginning with that day.

The appellant's case

6. The appellant sought exemption under regulation 4(c). The argument deployed was that the condition of the properties made their occupation unlawful; accordingly, that the owner was prohibited by law from occupying them or allowing them to be occupied. The appellant relied, in respect of each of the properties, on a report by Messrs Gleeds, building surveyors, both of which were dated 21 March 2013 and admitted in evidence by agreement. As to the condition of number 67, the report described the internal finishings and said:

"1.07 However the building has suffered extensive internal vandalism and theft of fittings, apparently since 2011. In particular the copper paths of the services installations have been forcibly stripped out and removed, including pipe work for parts of the heating and air cooling installations, hot and cold water supplies and drainage/wastes to the WC and welfare areas. Most of the electrical cabling throughout and taps/brassware to washbasins and radiator valves etc have all been stripped out and removed, and the associated appliances generally damaged/broken beyond repair throughout.

1.08 The internal finishes of suspended ceilings, partitions and carpets etc are also becoming generally derelict with waste and debris and damage beyond repair. Water from the vandalised/stolen water supply and heating pipe work services etc has flooded through to damage all floor levels, and in addition there are a number of significant current roof leak areas (cause unknown) causing continued water penetration to affect the second floor in particular, percolating downwards to the lower floor levels, and causing general dampness, humidity and moist air throughout the building, in turn leading to mould growth and further deterioration of the constructions and finishes."

7. As to number 69 the second report, having described the internal finishings, continued:

"1.07 The building throughout has suffered systematic internal vandalism and theft of fittings, apparently since 2011. In particular the copper parts of the services installations have been forcibly stripped out and removed, including pipe work for parts of the heating and air cooling installations, hot and cold water supplies and drainage/wastes to the WC and welfare areas. Most of the electrical cabling throughout and tapes/brass ware to washbasins and heating valves etc have been stripped out and removed, and the associated appliances generally damaged/broken beyond repair throughout.

1.08 However, whilst the internal suspended ceiling finishes have been extensively damaged, these still remain intact in many of the areas. The building has also not suffered significant water damage or deterioration, and floor coverings, carpet etc and decorations remain generally in fair/reasonable order and generally dry. The building envelope also appears reasonably intact with no major roof leaks, although there is an amount of broken window glazing."

8. The structural fabric of the buildings was generally intact. However, as to the interior, the conclusion reached by the building surveyors in respect of each building was that if it was occupied as offices, the owner would be in breach of its responsibilities under the Health and Safety Work etc Act 1974, the Workplace (Health, Safety and Welfare) Regulations 1992, and the Regulatory Reform (Fire Safety) Order 2005. In this appeal the appellant did not rely upon putative breaches of the Fire Safety Order 2005. Mr Kolinsky relied upon the duties created by the 1974 Act and the regulations made under it.
9. Under section 2 of the Health and Safety at Work etc Act 1974 it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees and, without prejudice to the generality of that duty, to maintain any place of work under the employer's control in a safe condition and without risks to health. By section 3 it is the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected are not exposed to risks to their health and safety. Section 4 concerns the general duties of persons concerned with premises to persons other than their employees. By sub-section (2) it is the duty of any person who has to any extent control of premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that they are safe for persons using those premises. By sub-section (3) where a person has, by virtue of any contract or tenancy, an obligation in relation to the maintenance or repair of premises, that person shall be treated for the purposes of sub-section (2) as being a person who has control of the matters to which his obligation extends. By sub-section (4), a person having control of premises is a reference to a person having control of the premises in connection with the carrying on by him of a trade, business or other undertaking.
10. Obligations imposed by regulations on which the appellant relies are contained in the Workplace (Health, Safety and Welfare) Regulations SI 1992/3004. They require that in any workplace an employer and every person who has to any extent control of a workplace must ensure compliance with the regulations relating in particular to the provision of lighting (regulation 8), sanitary conveniences (regulation 20) and washing facilities (regulation 21).
11. It is an offence contrary to section 33 of the Act to fail to discharge a duty to which the defendant is subject by virtue of sections 2 - 7 inclusive, or to contravene any health and safety regulations.
12. The appellant contends that if it entered upon the properties only to repair and maintain them, its entry would not constitute "occupation" for the purposes of the rating legislation. In Arbuckle Smith & Co. Limited. v Greenock Corporation [1960] A.C. 813 (HL), a case decided before unoccupied property was rated, the appellants purchased a building which they wished to use as a bonded warehouse. In order to obtain the necessary licence they were required to carry out works of upgrading and repair. The rating authority made a demand for "occupied" rates for a period during which the works were being carried out but the building was not yet being used for its intended purpose. The House of Lords held that entry by the appellants for the purpose of maintenance, repair or conversion did not constitute occupation. Accordingly, the appellant submits that the fact that it could enter 67 and 69 London Road for the purpose of repair and maintenance to bring them up to the standard required for use as offices did not mean that entry would constitute occupation within the meaning of the 2008 regulations.
13. The appellant's argument is that the owner could not "occupy" the premises for itself, neither could it allow others to occupy the premises for their intended purpose as offices, since to do so would place the owner or his tenant in immediate breach of the duties owed under the legislation which I have summarised. Each of those breaches would be an offence contrary to section 33 of the 1974 Act. Accordingly, the effect of the legislation was to prohibit by law the occupation of the premises by the owner or its tenant.
14. The appellant seeks to extract the principles on which it relies from the decision of McCullough J, sitting in the Divisional Court in Tower Hamlets London Borough Council v St Katherine by the Tower Limited [1982] RA 261, and the decision of the Court of Appeal in Regent Lion Properties Limited v Westminster City Council [1990] RA 121. It is necessary to examine the facts and findings in both these cases with some care.
15. I turn, first, to Tower Hamlets London Borough Council v St Katherine by the Tower Ltd. By section 34(4) of the London Buildings Acts (Amendment) Act 1939, no building (in Greater London) which required a means of escape from fire under section 34(1) "shall be occupied or let for occupation" until the local authority had issued a certificate that the building had been provided with a means of escape in accordance with approved plans. However, by section 150, any building or part of a building belonging to the Port of London Authority was exempted from the requirement for a certificate under section 34. The Port of London Authority was the owner of Europe House upon its completion as a new building. Later, it sold the freehold of the premises and leased back the 5^th floor for its own occupation from St Katherine's predecessor in title. The Port of London Authority remained in occupation of the 5^th floor under its lease from St Katherine until 31 March 1979. When the Port of London Authority vacated the premises the owners realised that, if they were to occupy or permit another tenant to occupy the 5^th floor, a certificate of compliance with section 34 of the 1939 Act would be required. Plans were submitted to the Greater London Council and approved. A fire escape was installed, the work was completed and a tenant took occupation.
16. Tower Hamlets made a rates demand to the owners, which embraced the period between 1 April 1979 and 29 September 1980, that is, after Port of London Authority vacated and before the new tenant occupied the 5^th floor. The General Rate Act 1967 introduced the liability of owners to pay rates in respect of unoccupied properties. Paragraph 1(1) of schedule 1 provided that, upon the making of an appropriate resolution by the local authority under section 17 (which in the Tower Hamlets case had been made), where a property or part of a property was unoccupied for a continuous period exceeding 3 months an unoccupied rate was payable. However, paragraph 2(a) of the Schedule 1 to the 1967 Act provided an exemption which read:

"No rates shall be payable … in respect of a hereditament for, or any part of the 3 months beginning with the day following the end of, any period during which (a) the owner is prohibited by law from occupying the hereditament or allowing it to be occupied."

The exemption was in materially identical terms to the current regulation 4(c). Since it was conceded that Europe House was a new building for the purpose of section 34 of the 1939 Act and, in the absence of a means of escape certificate, there was a prohibition against the occupation of the 5^th floor of the building, St Katherine claimed that it was exempted by paragraph 2(a) of Schedule 1 to the 1967 Act from paying the unoccupied rate.

17. Tower Hamlets argued (page 266) that the prohibition contemplated by paragraph 2(a) was not a general prohibition arising from the application of section 34(4) but a specific prohibition directed at the property made by a court, local authority or other official or public body. For example, section 34(5) empowered the local authority to issue a prohibition against occupation to a defendant convicted of an offence of contravening the section. No such prohibition had been issued. Tower Hamlets provided several other examples of statutory prohibition notices that certain public authorities were empowered to serve (page 267). It was further argued that the owner of the premises which chooses not to put them into a compliant condition (within the three month period of grace) should not escape liability to pay the occupied rates that would have been due had he made the necessary alterations.
18. McCullough J rejected the argument that before an exemption could arise under paragraph 2(a) there had to be a prohibition notice issued by a public body. On the face of it, paragraph 2(a) applied equally to prohibition of occupation without the certificate required by section 34(4), as to occupation prohibited by a notice issued under section 34(5) (page 267). The judge turned (at page 268) to consider whether there were countervailing factors which demanded a different construction of paragraph 2(a) or required the court to qualify the meaning of the word "owner". The judge recognised the force of the argument that it was unlikely to have been the intention of Parliament that a property owner should obtain the benefit of rates exemption by deliberately keeping his property in a condition in which it was incapable of occupation. However, (at page 269) the judge rejected as unworkable the argument that Parliament intended the word "owner" to be restricted to one who behaved in a reasonable way. Formerly, the owner had been exempted from the payment of rates for an unoccupied property. The 1967 Act removed that exemption in general but, in a limited number of circumstances, maintained it. The purpose of paragraph 2(a) was to restrict the circumstances in which an owner could claim exemption from the payment of rates for an unoccupied property. However, the fact that the plain meaning of the words used in paragraph 2(a) would benefit an owner who chose to delay equipping his building with means of escape in case of fire was insufficient to justify a departure from them. It would be a greater violation of the words used in paragraph 2(a) to hold otherwise (page 270). Tower Hamlet's appeal was therefore dismissed.
19. The appellant relies upon Tower Hamlets for the propositions that (i) there need be no issue of a prohibition notice before regulation 4(c) of the 2008 regulations provides an exemption from liability for the unoccupied rate under section 45 of the 1988 Act and (ii) if occupation is prohibited by law, the fact that prohibition may arise from inactivity on the part of the owner is immaterial. I agree with both these propositions as stated. They do not, however, answer the question: how strict should be interpretation of the term "prohibited by law"?
20. In Regent Lion Properties Ltd v Westminster City Council there was an existing outline planning permission to develop land to include a parade of 12 shops in central London. In 1968 Pan American Airways Corporation ("PanAm") obtained a sub-lease of the land and secured planning permission to develop it instead 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.
21. It was held by the Divisional Court 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 in their relevant parts:

"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."

The Divisional Court further held that 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.

22. Glidewell LJ delivered the leading judgment of the court. He held, at pages 129-130, that 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 (page 130):

"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?"

Glidewell LJ reached the following conclusion:

"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."

23. 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, at page 136:

"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."

It does not appear to have been argued, as here, that the property could not be occupied for its intended purpose because to do so would breach health and safety legislation. Accordingly, Glidewell LJ held that the Divisional Court had also been correct to rule that the unoccupied rate was payable after 21 May 1985. The other members of the court, Mann LJ and Sir Denys Buckley, agreed.

24. Mr Kolinsky seeks to derive from the decision in Regent Lion Properties Ltd the propositions that (i) express prohibition from occupation by notice is not essential to qualification for an exemption provided that the necessary effect of a notice is to prohibit occupation and (ii) the court will, when considering the question whether occupation is prohibited by law, take the state of the premises as it was and not as it may have been if remedial work had been completed. Again, as stated, these are propositions that I can accept. However, they do not provide the solution to the present issue which is whether anything less than a statutory or other common law prohibition against occupation will suffice to attract the exemption. Mr Kolinsky submitted that the practical effect of occupation in the present case would be the commission of a criminal offence contrary to section 33 of the Health and Safety at Work Act etc 1974. Occupation whose practical consequence is the commission of a criminal offence is, by implication, occupation prohibited by law.

The respondent's case

25. Miss Wigley submitted on behalf of Gloucester City Council that a "prohibition in law" can only arise in one of two circumstances:

i) The law prohibits occupation of the property; or

ii) A prohibition notice expressly or by necessary implication prohibits occupation.

It does not follow that occupation of numbers 67 and 69 London Road, Gloucester would, as a matter of law, create liability for a criminal offence. Furthermore, the offence on which the owner relies is not the act of occupation but breaches of duty that would or might arise, depending upon the facts, once occupation has been taken. The distinction between the present case and Regent Lion Properties Ltd is that, here, there has been no prohibition upon occupation pending the performance of specific works. Accordingly, it is submitted that the appellant failed to bring itself within the exemption provided by regulation 4(c).

Discussion

26. The Court of Appeal in Regent Lion Properties Ltd did not, as the appellant acknowledged in argument, hold that the practical effect of occupation was that occupation was prohibited by law. It held that the practical effect of the notice was that occupation was prohibited by law. It found that on the particular and unusual facts of that case the notice issued under the 1974 Act prohibited the occupation of the property until such time as the asbestos problem had been solved.
27. Mr Kolinsky argued that it was a small step from the decision in Regent Lion Properties Ltd to exemption in the present case. There was no reason in principle to distinguish between, on the one hand, a notice impliedly or effectively prohibiting occupation and, on the other, occupation impliedly or effectively giving rise to a criminal offence and, thus, prohibition of that occupation by law.
28. It is common ground that the burden is upon the owner to establish the exemption. In my opinion, the starkness of the term "prohibited by law from occupying" of its nature points to a strict interpretation. As for the purpose of the exemption in the context in which it appears, in Easiwork Homes Ltd v Redbridge London Borough Council [1970] 2 QB 406 the Divisional Court considered liability for a domestic rate during a period when a block of flats was being upgraded. Paragraph 1 of schedule 1 to the General Rate Act 1967 provided that where a relevant hereditament was unoccupied for a continuous period exceeding 3 months the owner should be rated as if the property was occupied. It was argued on behalf of the ratepayer that there should be implied into paragraph 1 a requirement that the property should be physically capable of occupation. The Divisional Court rejected this argument. Bridge J, as he then was, delivering a judgment with which the other members of the court agreed, noted that paragraph 10 of schedule 1 provided that structural alteration of a building may render it no longer a hereditament liable to rates. It was therefore unlikely that the exemption should apply in the case of a property that was not being structurally altered to the effect contemplated by paragraph 10. As to the identification of the mischief to which the statute was aimed, Bridge J recognised the attractiveness of the argument that the true purpose of the legislation was to penalise property owners who, for the purposes of capital gain, kept their properties unoccupied for long periods when they might be providing useful accommodation. This property owner was, for the benefit of the community, attempting to upgrade domestic accommodation for occupation. However, Bridge J concluded that this was to a large extent counter-balanced by the rating authority's argument that:

"...if the statute is to be construed so as to exclude liability under these provisions in respect of property which for the time being is incapable of occupation, it would open the door to widespread abuse in that it would be open to any property owner anxious to keep his property unoccupied for a substantial period of time simply to remove, say, the sanitary fittings and part of the plumbing in order to be able to say that the property was for the time being incapable of occupation." (at page 415A)

29. Mr Kolinsky rightly observed that these comments were made in relation to a different legal issue, namely whether an exemption should be read into words that, on their face, did not permit it. It seems to me, however, that Parliament, when granting the exemption in regulation 4(c) and its predecessors, will not have intended that owners should establish an exemption merely by inactivity resulting in the dilapidation of the building, except in cases of necessity. Regulation 4(a) provides the owner with exemption from unoccupied rates for a period of 3 months and regulation 4(b) with an exemption for 6 months. It seems to me highly improbable that Parliament intended that the building owner should be exempted from unoccupied rates altogether in consequence its own failure to carry out necessary maintenance and repair unless expressly or by necessary implication (as in Tower Hamlets and Regent Lion Properties Ltd) occupation was prohibited by law.
30. In my judgment, it is not enough for the owner to establish that if he occupies the property or allows it to be occupied for a particular purpose he will render himself liable to prosecution under the health and safety legislation. At no time has the law prevented him from entering the premises in order to restore them. He must show that the law prohibits occupation, either because, as in Tower Hamlets, the law says he must not occupy in the circumstances as they currently prevail, or, as in Regent Lion Properties Ltd, that the necessary effect of a prohibition or enforcement notice is to prohibit him from occupation. The health and safety legislation does not prohibit occupation and, in my judgment, the risk of breach of the legislation if the premises were, without more, occupied does not suffice to exempt the owner.
31. Secondly, the owner's argument in the present case requires us to assume that occupation, of itself, would amount to the commission of a criminal offence. In my opinion, that assumption is not justified. The duties are in the main owed by an employer towards his employees and visitors to the workplace. The owner could not itself use part of the premises as a workplace without, first, putting that part of the property into a compliant condition. The owner could not lease the premises to an employer without taking such measures as it is reasonable for a building owner to take to ensure that the workplace will be safe, for example, by requiring the tenant, as a term of the lease, to carry out the remedial work. Neither the Act nor the regulations prohibits an employer or person in control from occupation of the building. I conclude that the obligation of the owner, as an employer, to remedy the condition of the property or as a landlord to require the tenant, as an employer, to do so does not constitute a prohibition of occupation by law. I accept the argument for the rating authority that nothing less than a prohibition from occupation will suffice to create the exemption. Occupation of the properties would not of itself constitute the section 33 offence; neither does section 33 expressly or by implication prohibit occupation. Disobedience of a 1974 Act notice whose effect was to prohibit occupation would be a different matter.
32. Furthermore, the unoccupied rate is payable on any day when none of the hereditament is occupied (section 45(1)(a) of the 1988 Act) and the occupied rate is payable on any day when all or part of the hereditament is occupied (section 43(1)(a)). I can see no reason why the premises could not be re-occupied in stages, with the immediate provision of temporary facilities, so as to avoid breaches of the workplace obligations either by the appellant or its tenants. The primary obligation is not to render the workplace congenial but to render it safe. I do not, therefore, accept the premise to the appellant's argument that occupation of the properties even for the purpose of creating a workplace would, of itself, amount to the commission of an offence contrary to section 33 of the Act.
33. In the case stated for the opinion of this court, the judge referred to the rating authorities "discretion" to grant an exemption under the 2008 regulations. It is agreed that in this respect the judge's terminology was erroneous. While application for the exemption could be made to the rating authority, if the requirements of regulation 4(c) were met exemption was an entitlement. Further, when considering Tower Hamlets the judge referred to the service of a notice upon St Katherine when there was none and to "the Judges" when the decision was made by a single judge. It would seem that DJ Brown was eliding findings made in more than one of the cases. However, he concluded that "there is no notice, nor prohibition, in existence to prevent occupation". For the reasons I have given, which differ from those of the judge, I conclude that he was correct in law. I would therefore answer the first of DJ Brown's questions (paragraph 3 above) in the affirmative.
34. Although, in question 2, DJ Brown invited this court to state its opinion upon the issue whether the properties could be occupied for use as a storage facility, he expressly did not make any finding upon this aspect of the respondent's case. Neither did the judge make any findings of fact upon which the issue could be resolved. It is implicit in paragraph 32 of my further, and alternative, reasons for rejecting the appellant's argument upon the first issue that, in my opinion, all or part of the hereditament could be occupied without risking breach of the health and safety legislation. In the skeleton argument first submitted by different counsel on the appellant's behalf, it was suggested that it did not appear to be in dispute that occupation would involve an offence under the health and safety legislation. That was not a submission repeated by Mr Kolinsky and it is inconsistent with the respondent's arguments both upon the first issue and as to the use of the building for storage. However, I do not consider it appropriate to express a concluded opinion upon the issue whether occupation of the properties specifically for the purpose of storage would disentitle the appellant's claim for exemption when the judge himself did not do so.

Conclusion

35. For the reasons I have given I would dismiss the appeal.

Nicola Davies J:

36. I agree