Another recent case looks at the concept of rateable occupation in the context of rates avoidance. In Queen Street Properties Ltd v Cardiff City and County Council  EWHC 36, Mr Justice Eyre confirmed the principles of rateable occupation but confirmed that the arrangements set up by the Appellant in an apparent attempt to avoid the payment of non-domestic rates were a sham.
The judgement concerned two properties and in both cases the lessee (A) granted management agreements and licences to a separate company (B). The Appellant was the sole director and shareholder of both “A” and “B”. In each case “B” was alleged to be the ratepayer but was wound up in an attempt to avoid paying the non-domestic rates due.
At a prior hearing District Judge Khan set out the test of rateable occupation but found that the “pattern of cyclical incorporation and dissolution” of companies set up by the ratepayer “has every appearance of being a tax avoidance scheme”. In those circumstances he found each licence to be a sham holding the lessee “A” to be the rateable occupier. Mr Justice Eyre found there to be no error of law in this regard.
As to rateable occupation Mr Justice Eyre confirmed that the “crucial question in determining whether the Appellants are liable on the summonses is whether they were in rateable occupation of the premises in question”. He confirmed the test for rateable occupation is that laid down by Tucker LJ in John Laing & Son Ltd v AC for Kingswood Assessment Area  1 KB 344 “First, there must be actual occupation; secondly, that it must be exclusive for the particular purposes of the possessor; thirdly, that the possession must be of some value or benefit to the possessor; and, fourthly, the possession must not be for too transient a period.”
District Judge Khan set out that “the question who is in occupation has to be answered as a question of fact” relying on the statement from Buckley LJ in Southwark LBC v Briant Colour Printing Co. Ltd  1 WLR. Mr Justice Eyre approved confirming that “The question of actual occupation is a matter of fact which is to be determined in the light of the relevant factual circumstances. Actual occupation is different from ownership and from the legal right to possession of particular premises. It follows that there is no presumption of law that the owner is the rateable occupier of occupied premises in the absence of other explanation”.
So those involved in questions of liability must carefully examine the relevant circumstances of actual occupation before determining who is in “rateable occupation”.