Aardvark SRE Ltd. v Sedgefield Borough Council

Under the Town and Country Planning Act 1990, ownership or entitlement to occupy does not by itself make a person an owner occupier. The requirement is actual occupation of the whole or a substantial part of the property throughout the prescribed period ending with service of the notice. Refurbishment does not necessarily establish occupation, and a tenancy followed by vacancy may prevent the required continuity even if refurbishment counted. The rating-law analogy imports the established meaning of occupation, not the whole rating regime or its separate rules about avoiding rates. An appeal from the Lands Tribunal is confined to points of law and cannot reopen factual findings without a properly arguable perversity.

Aardvark SRE Ltd purchased a terraced house, refurbished it, let it briefly, and then left it vacant. It served a blight notice on Sedgefield Borough Council under section 150 of the Town and Country Planning Act 1990. The council’s counter-notice objected under section 154(4)(f) that Aardvark lacked a qualifying interest because it was not an owner occupier.

The Lands Tribunal decided that preliminary issue against Aardvark. Aardvark made a renewed application for permission to appeal. The central issue was whether ownership, legal entitlement, refurbishment, or liability for council tax could satisfy the statutory requirement of owner occupation despite the property having been let and then vacant during the six-month period before service.

Application refused. Lord Justice Richards held that the Lands Tribunal’s decision was properly open to it and that an appeal had no real prospect of success.

1. Under section 149(2) of the Town and Country Planning Act 1990, an interest qualifies only if one of the conditions in subsection (3) is met. The relevant category was owner occupier, not resident owner occupier. Section 168(1)(a) required actual occupation of the whole or a substantial part of the property in right of an owner’s interest throughout the six months ending with service of the notice. Ownership and occupation were distinct concepts, so alleged de jure occupation was insufficient.
2. The approach in Minister of Transport v Holland [1963] 14 P&CR 259 remained applicable notwithstanding the replacement of domestic rating by council tax. The reference to rating in section 171 reinforced that conclusion. However, the analogy extended only to the meaning of occupation. It did not import the whole Rating Acts regime or the separate period relevant to avoiding rates. The planning legislation prescribed its own six-month period.
3. The definition in section 207 of the Housing Act 1985 did not assist. It arose in a different statutory context and expressly included entitlement to occupy, unlike section 168. That difference confirmed that section 168 required actual occupation.
4. Even if refurbishment works could amount to occupation, the short tenancy and subsequent vacancy meant that Aardvark had not occupied the property for the whole statutory period. An appeal from the Lands Tribunal was confined to points of law and could not be used to reopen factual matters. The suggested perversity challenge was wholly unpersuasive. The Tribunal’s reliance on the rating statement in Liverpool Corporation v Chorley Union [1913] AC 197 did not alter the result.

The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 6 August 2008, the renewed application for permission to appeal was refused: [2008] EWCA Civ 1109.
• Lands Tribunal: On a preliminary issue, Mr A J Trott FRICS held that Aardvark lacked a qualifying interest because it was not an owner occupier.