O'Brien v Clark

Permission to appeal should be refused where the proposed appeal has no prospect of success and would confer no practical advantage, since granting permission would cause needless expense. In a rating dispute, beneficial occupation was difficult to reconcile with an absence of actual occupation in ordinary circumstances. A factual finding that the property was not “struck with sterility” left no viable argument on that basis. An unspecified reliance on European law could not justify permission where no specific rule affecting the issue was identified.

O’Brien sought permission to appeal from a decision of the Lands Tribunal, Mr Trott, made in September 2006. The dispute concerned when a plot of land in Penge Road, formerly used for an advertising hoarding, should have ceased to be listed as a hereditament. The relevant period was January 2001 to July 2002, although it was accepted that the land was properly removed from the rating list from July 2002.

The Valuation Officer relied alternatively on beneficial occupation satisfying the four classic tests for a hereditament, or on a statutory provision concerning land used for advertising hoardings. The central issue was whether any arguable error justified granting permission for a full appeal.

The application for permission to appeal was refused.

1. Rating issue. The Valuation Officer’s case was that the land was either occupied beneficially or could be treated as occupied by the owner under the statutory provision concerning advertising hoardings. The Lands Tribunal appeared to have misunderstood the way the case was put, but it was unnecessary to examine that error in detail.
2. Occupation. The Tribunal had considered and rejected the argument that the property was “struck with sterility”. The court considered it difficult, in a common-sense setting, to regard property as beneficially occupied but not actually occupied. The Tribunal’s failure to address actual occupation separately did not justify prolonging the matter by granting permission for a full appeal.
3. European law. The appellant identified no specific European legal rule affecting the issue. That point therefore provided no basis for permission.
4. Permission and disposal. The court saw no prospect of a successful appeal and no practical advantage even if the matter were returned to the Lands Tribunal. Granting permission would result only in needless expense. The order was: application refused.

• Court of Appeal (Civil Division): On 5 June 2008, the application for permission to appeal was refused: [2008] EWCA Civ 700.
• Lands Tribunal: Mr Trott gave the decision under challenge in September 2006. No citation is stated in the judgment.