[2025] EWHC 2336 (Ch)

I accept that, as explained by Mr Mather in evidence, these units are also known as respectively Unit A1, Unit A3 and Unit A4.

The claim for NDR in respect of Unit 5 is for the period 25 May 2012 – 16 March 2014. The defendant’s case is that on 31 May 2012 PAG granted a licence to occupy unit 5 to Fresh Direct (UK) Ltd (‘Fresh’) for storage. The licence agreement was in evidence, and there is nothing in the document itself to suggest that it was not genuine. Nor were the claimant’s witnesses able to identify any reason to suppose it was not. The Companies House documents suggest Fresh is a real and active trading company. I consider that there is adequate evidence for me to conclude that Fresh took up occupation under that licence, until it was terminated on 12 August 2013 by the letter dated 2 August 2013 which is also in evidence. This is not a case like that of Anami Holdings v Sandwell MBC [2018] EWHC 1913 (Admin). Ms Rawlinson gave evidence as to the failure of her enquiries to establish the occupation by Fresh of Unit 5, but this is one of those cases in which the absence of evidence is not evidence: her searches of Wigan systems were revealed not to have been fully comprehensive, and it was such a long time after the Fresh licence was granted when the enquiries were pursued that it is hardly surprising that information was not obtained from Fresh. Accordingly, Fresh was liable for NDR as the occupier of the premises during that period, not PAG.

Thereafter, PAG became exempted from liability to NDR for a period of six months (i.e. until 12 February 2014) by reg.4(b) of the 2008 Regulations; and thereafter, Unit 5 was subject to the Scheme Lease granted to Murton.

Wigan claims NDR on Unit 5B for 22 May 2008 – 14 January 2010 and on Unit 5C for 15 January 2010 – 31 August 2010. On 28 September 2009, PAG granted Asda Stores Limited (“Asda”) a lease of Unit 5B (the “Asda Lease”) for a term commencing on 5 October 2009 and expiring on 31 December 2009, the validity of which is not disputed. Wigan’s inspection record from 10 November 2009 shows that Asda took up occupation of Unit 5B on a “temporary basis” for a “relief picking operation.” I accept that for the duration of the Asda Lease, Asda was the entity liable to NDR under s.43(1) of the 1988 Act. Upon the expiration of the Asda Lease, the six-month NDR exemption in reg.4(b) of the 2008 Regulations applied.

Clause 6 of the Asda Lease provided that the principal rent was inclusive of business rates and insurance costs which the landlord was to pay to the relevant authority or insurance company. The claimant placed some reliance on this, but it plainly does not affect the incidence of liability for NDR as regards the billing authority.

On or about 15 January 2010, Fresh then took up occupation of the whole of Unit 5B and Unit 5C. PAG wrote to Wigan on 26 January 2020 to advise Wigan of this. development. Fresh’s occupation was reported in the local press on 26 January 2010.

Fresh then took an occupational lease dated 30 July 2010 (the “Fresh Lease”) for a term of 10 years from and including 4 January 2010. There is no suggestion that this was not a genuine transaction. I accept that from 15 January 2010, and at all material times thereafter, Fresh was the entity liable to NDR for both Unit 5B and Unit 5C.