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    72. Whether, in a particular case, a contract conferring a licence over land creates a relationship between the licensee and the land that can be described for VAT purposes as "occupation" is, in my opinion, a question of fact and degree. The same must, in my opinion, be true of a "letting" for the purposes of article 13B(b) of the Directive.

    73. So what are the characteristics that distinguish a licence to occupy from a mere licence to use? There are, in my opinion, two characteristics, one or other of which must, in some sufficient degree, be present. One is possession. The other is control. If neither is present, I find it difficult to understand how the licensee could be said to "occupy".

    74. There is some assistance to be gained from authority. In R v St Pancras Assessment Committee (1877) 2 QBD 581, 588, Lush J said:

"Occupation includes possession as its primary element …"

And in Newcastle City Council v Royal Newcastle Hospital [1959] AC 248, 255, Lord Denning said:

"Occupation is matter of fact and only exists where there is sufficient measure of control to prevent strangers from interfering …"

These two elements, possession and control, seem to me to be the important ingredients of a relationship between an individual and land apt to be described as "occupation". A "licence to occupy" is, in my opinion, to be read as meaning a licence to go into possession, not necessarily exclusive possession, or to go on to the land and take some degree of control of it. If neither of these features is present, the licence cannot, in my opinion, properly be described as a licence to occupy.

    75. Accordingly, a person entitled to place an advertisement on a wall cannot, in any meaningful sense, be described as being in occupation of the space occupied by the advertisement. The commissioners' practice in regard to advertisements is, in my opinion, correct. It is not concessionary. It is a recognition that the right granted is not a "letting" of land and that the exercise of it does not involve the occupation of land. For the same reasons the grant of a right for a salesperson with a tray suspended from his or her neck to wander around a public house or the foyer of a theatre offering for sale the contents of the tray would not constitute the grant of a licence to occupy. There would be no part of the premises of which the salesperson could be said to be in possession or control or, therefore, in occupation. Nor, in my opinion, would the result be any different if the salesperson were obliged under the agreement to be stationed in a specific corner of the premises. There would still be nothing that could reasonably be thought to constitute "occupation" or a "letting" of land.

    76. On the other hand, the grant of a licence to set up and maintain a stall or a kiosk in some defined area of the premises in order for a salesperson to sell some product or other from the stall or kiosk might create in the licensee something that could be called "occupation". There might well be a sufficient degree of control of the area in question.

    77. So how is the right to install and maintain a vending machine under the terms of such an agreement as this case involves to be regarded? A "licence to occupy" is something to be enjoyed by persons, whether natural or corporate. It is people or companies who must be in possession or exercise control, not inanimate objects like tables, kiosks, cars or vending machines. A right, for example, to use a safe deposit box at a bank does not grant the customer a "licence to occupy" the safe deposit box. It is the bank that is in possession and control of the whole of its premises, including the space taken up by the box. The customer has no more than a right to put things in the box and is not, in any meaningful sense, in occupation of the space taken up by the box.

    78. On the facts of the present case, I do not regard the relationship between the appellant and the space occupied by its vending machine as falling within the concept of "occupation". This is because, first, the owner of the premises remains in possession and control of the whole of the room in which the vending machine is placed. The appellant has the right to enter the premises to maintain and re-stock the vending machine but he needs the co-operation of the owner to exercise that right. A clear indication that it is the owner who is in control of the premises is that the owner is placed under a contractual obligation to take reasonable steps to protect the machine.

    79. Second, it seems to me unnatural to treat the room in which the vending machine is installed as being partly occupied by the owner and partly occupied by the appellant. In common sense and commercial terms the owner remains in occupation of the whole of the room.