Landlord and tenant — Landlord and Tenant Act 1954 — Break clause — Whether notice under section 25 of 1954 Act and accompanying letter effective notice to exercise break clause for development purpose — Whether section 30(1)(f) satisfied
By a lease dated July 5 1988 the
applicant tenant held a 26-year term of commercial premises from October 10
1984, subject to provisions for early determination by the respondent
landlords. The break clause being exercisable on six months’ written notice
should the landlords desire, in certain specified years, to demolish or
reconstruct, or carry out substantial works of construction to, the building of
which the premises formed part. Under cover of a letter dated April 4 1995 the
landlords’ agents enclosed a notice under section 25 of the Landlord and Tenant
Act 1954 terminating the lease on October 10 1995; the letter stating that the
notice was served under the Act and under the break clause of the lease to
enable the landlords to redevelop the building with adjoining buildings. The
notice relied on section 30(1)(f) of the Act. The following questions
were ordered to be heard as a preliminary issue: (1) whether the notice was
valid to determine the lease both for the purposes of the break clause and
section 25 of the Act; (2) whether the landlords were entitled to oppose an
application for a new tenancy under section 30(1)(f) of the Act; and (3)
whether the letter of April 4 1995 was itself a valid notice for the purposes
of the break clause.
(1) For the purposes of the break clause the landlords had to establish a
‘desire’ to redevelop when their notice was served; ‘desire’ was different from
‘intention’ under the 1954 Act. It was sufficient if the landlords could prove
on April 5 1995 that they contemplated, in general terms, demolition or
reconstruction of the building or a substantial part of it. There was evidence
of a clear desire to carry out development. There was no necessity to be able
to point to a finished scheme. (2) The section 25 notice should be read with
the accompanying letter which made plain that the landlords desired to
redevelop the building within the meaning of the break clause. The notice
specified the correct date. The letter taken in conjunction with the notice
operated as an effective break notice as well as a good statutory notice under
the Act. On the evidence there was a scheme which satisfied the requirements of
section 30(1)(f), and that the tenant could not carry on its business
while the works were in progress.
The following cases are referred to in
this report.
Betty’s Cafés Ltd v Phillips Furnishing
Stores Ltd [1959] AC 20; [1958] 2 WLR 513; [1958] 1 All ER 607; [1958] EGD
92; (1958) 171 EG 319, HL; affirming [1957] Ch 67; [1956] 3 WLR 1134; [1957] 1
All ER 1, CA
Cadogan v McCarthy & Stone Developments
Ltd [1996] EGCS 94
Carradine Properties Ltd v Aslam [1976] 1 WLR
442; [1976] 1 All ER 573; (1975) 32 P&CR 12
Cunliffe v Goodman [1950] 2 KB 237; [1950]
1 All ER 720, CA
Giddens v Dodd (1856) 3 Drew 485
Gilmour Caterers Ltd v St Bartholomew’s Hospital
Governors [1956] 1 QB 387; [1956] 2 WLR 419; [1956] 1 All ER 314, CA
Keith Bayley Rogers & Co v Cubes Ltd (1975) 31
P&CR 412
Mannai Investment Co Ltd v Eagle Star Life Assurance
Co Ltd [1995] 1 WLR 1508; [1996] 1 EGLR 69; [1996] 06 EG 140
Scholl Manufacturing Co Ltd v Clifton (Slim-line) Ltd
[1967] Ch 41; [1966] 3 WLR 575; [1966] 3 All ER 16, CA; affirming [1966] Ch
298; [1966] 2 WLR 902; [1966] 1 All ER 993
This was the hearing of a preliminary
issue in an originating summons by which Aberdeen Steak Houses Group Ltd sought
certain declarations arising out of notice served by the respondents, the Crown
Estate Commissioners, under the Landlord and Tenant Act 1954.
James Munby QC and David Iwi (instructed
by Izod & Co) appeared for the applicant; Edwin Johnson (instructed by
Radcliffes Crossman Block) represented the respondents.
Giving judgment, MR ANTHONY GRABINER
QC said: This is a case under
the Landlord and Tenant Act 1954, Part II. The tenant, Aberdeen Steak Houses
Group plc (‘Aberdeen’), claims a declaration that a notice served on it by the
landlords, the Crown Estate Commissioners (‘the commissioners’), under section
25 of the Act was invalid. Aberdeen also relies on an alternative argument. It
seeks the grant of a new tenancy under the Act on terms to be settled by the
court.
On May 22 1996 Lightman J ordered that
the issues which I shall now summarise should be tried as preliminary issues.
(i) Was the notice a valid notice to
determine the lease both for the purposes of a break clause in that lease and
also section 25 of the Act?
(ii) Are the commissioners entitled to
oppose Aberdeen’s application for a new lease of the premises under section
30(1)(f) of the Act?
(iii) Was the letter dated April 4 1995
(under cover of which the notice was served) itself a valid notice to determine
the lease pursuant to the break clause?
The lease is dated July 5 1988. It was
made between the Queen’s Most Excellent Majesty, the commissioners and United
Biscuits (UK) Ltd. By the terms of the lease the commissioners demised to
United Biscuits certain premises situated on the ground floor and in the
basement of America House, 29/34 Cockspur Street in Westminster (‘the
building’). The lease was granted for a term of 26 years with effect from
October 10 1984.
The premises which were the subject of
the demise form part of the building. The building itself forms part of a block
of property known as 25/34 Cockspur Street and 6/8 Spring Gardens, which is
situated by Trafalgar Square. The freehold interest of this block is vested in
the commissioners as part of the Crown Estate.
Aberdeen took an assignment of the lease
in 1989. As its name suggests, Aberdeen occupies the demised premises for the
purposes of a restaurant business. It is common ground that the lease qualifies
for protection under the Act as a business tenancy.
The break clause in the lease is at
clause 5(b). It provides as follows:
If the [commissioners] shall desire to
demolish or reconstruct the Building or a substantial part thereof or to carry
out substantial work of construction on part thereof on or after the 10th day
of October in the years 1995 or 2000 or 2005 and of such desire shall give to
[Aberdeen] at least six months’ previous notice in writing to expire on the
relevant of the aforementioned dates then on the expiration of the said notice
the term hereby granted shall cease …
Under cover of their letter dated April 4
1995 Cluttons, on behalf of the commissioners, sent a notice to Aberdeen which
was intended to terminate the lease on October 10 1995. The covering letter and
the notice were received by Aberdeen on April 5 1995. The material part of the
covering letter stated:
Crown
Estate
29/34 Cockspur Street — Ground Floor
& Basement
We enclose herewith by way of service on
you a Notice under Section 25 of the Landlord & Tenant Act 1954 bringing
your lease of these premises to an end on the 10th October this year. This
Notice is served in accordance with clause 5(b) of your lease dated 5th July
1988. Would you please acknowledge receipt of this Notice as quickly as
possible.
This Notice is served to enable our
clients to redevelop this building, in conjunction with adjoining buildings and
the extent of the proposed redevelopment is such that it will not be possible
for you to remain in occupation while the works progress …
I pause to note the fact that the letter
refers in terms to the notice being served both under section 25 of the
Act and in accordance with the break clause.
The enclosed notice followed the
prescribed form. Specific reference was made to the demised premises and notice
was given to determine the lease on October 10 1995. The notice also stated
that in the event of Aberdeen applying to the court for the grant of a new
tenancy, the commissioners would oppose that application on the grounds
mentioned in section 30 (1)(f) of the Act.
Aberdeen gave its counternotice dated May
25 1995. The counternotice stated that Aberdeen would not be willing to give up
possession of the premises on the specified date. In a covering letter from the
solicitors acting for Aberdeen it was stated that no admissions were made ‘as
to the validity of the notices’ which had been served and Aberdeen’s rights in
that regard were expressly reserved.
It was agreed by the parties before me
that the case for the commissioners would be presented first. In summary the
commissioners’ case is that the contractual term of the lease was brought to an
end on October 10 1995. The notice was an effective break notice as well as
being an effective notice under section 25 of the Act. It is said that Aberdeen
has no right to a new tenancy under the Act because the commissioners are
entitled to oppose the grant of such tenancy on the grounds set out in para (f).
In the alternative, the commissioners say that they have terminated the
contractual term of the lease by a valid exercise of the break clause even if,
contrary to their primary case, they have not succeeded in serving a valid
section 25 notice.
Aberdeen says that the notice was invalid
and that the contractual term of the lease, accordingly, continues. If Aberdeen
is wrong about this then it disputes the right of the commissioners to oppose
its application for a new tenancy on the grounds set out in para (f).
In his skeleton argument on behalf of the
commissioners Mr Edwin Johnson identified the three questions which fall to be
answered by me for the purpose of deciding the preliminary issues. I summarise
them as follows:
(i) Did the commissioners satisfy the
condition precedent to the service of a notice under the break clause in the
lease, ie did the commissioners, as at the date of service of the notice,
desire to demolish or reconstruct the building or a substantial part thereof on
or after October 10 1995?
(ii) If the commissioners did satisfy the
condition precedent referred to in (i) above was the notice valid both for the
purposes of section 25 of the Act and the break clause in the lease?
(iii) If the commissioners have validly
terminated the lease do they now, ie at the date of the hearing of the
preliminary issues, have the requisite intention to carry out works to the
demised premises within section 30(1)(f)?
As to the first of those three questions,
it is agreed that the date by which the relevant desire must be proved to have
come into existence is the date when the notice was served on Aberdeen, ie April
5 1995. This, in turn, raises two supplementary questions. What is meant by the
word ‘desire’ in this context and, by reference to the facts, did the
commissioners have the relevant state of mind?
On behalf of Aberdeen, Mr James Munby QC
submitted that ‘desire’ was stronger than ‘wish’, it was akin to ‘intention’
and connoted ‘a firm and a settled desire’. He said that since the effect of
the operation of a break clause was analogous to the operation of a forfeiture
clause it should be strictly construed against the landlord and in favour of
the tenant. Accordingly, he submitted that there must in addition have been a
reasonable expectation, as at April 5 1995, that the desire could be
implemented. He submitted that it would not be sufficient for the commissioners
to show a desire to carry out some form of refurbishment or even a form
of refurbishment that might have involved works falling within the scope of the
break clause. What must be established is that there was a desire to carry out
works which would have fallen within the scope of the break clause.
On behalf of the commissioners it was
submitted that in order to prove the existence of the requisite desire it was
not necessary to satisfy the test of intention under para (f). It was
submitted that the commissioners only have to prove the existence of their wish
to carry out a demolition or reconstruction of the building or a substantial
part thereof on or after October 10 1995. In particular, it was submitted that
the commissioners do not have to prove that on or before April 5 1995 they had
a reasonable prospect of bringing about the relevant demolition or
reconstruction: it was sufficient if the commissioners wished to carry out such
work notwithstanding the fact that as at April 5 1995 there were hurdles which
had to be overcome before the work could be done.
On this point I prefer the submissions
made on behalf of the commissioners. ‘Desire’ is an ordinary English word
meaning simply to wish for something. As a matter of plain language it is, I
think, quite different from the word ‘intention’. The distinction is helpfully
pointed up in the judgment of Asquith LJ in the Court of Appeal in Cunliffe
v Goodman [1950] 2 KB 237 at p253:
If the plaintiff did no more than
entertain the idea of this demolition, if she got no further than to
contemplate it as a (perhaps attractive) possibility, then one would have to
say (and it matters not which way it is put) either that there was no
evidence of a positive ‘intention,’ or that the word ‘intention’ was incapable
as a matter of construction of applying to anything so tentative, and so
indefinite. An ‘intention’ to my mind connotes a state of affairs which the
party ‘intending’ — I will call him X — does more than merely contemplate: it
connotes a state of affairs which, on the contrary, he decides, so far as in
him lies, to bring about, and which, in point of possibility, he has a
reasonable prospect of being able to bring about, by his own act of volition.
X cannot, with any due regard to the
English language, be said to ‘intend’ a result which is wholly beyond the
control of his will. He cannot ‘intend’ that it shall be a fine day tomorrow:
at most he can hope or desire or pray that it will. Nor, short of this, can X
be said to ‘intend’ a particular result if its occurrence, though it may be not
wholly uninfluenced by X’s will, is dependent on so many other influences,
accidents and crosscurrents of circumstance that, not merely is it quite likely
not to be achieved at all, but, if it is achieved, X’s volition will have been
no more than a minor agency collaborating with, or not thwarted by, the factors
which predominantly determine its occurrence. If there is a sufficiently
formidable succession of fences to be surmounted before the result at which X
aims can be achieved, it may well be unmeaning to say that X ‘intended’ that
result.
Asquith LJ concluded (at p254):
In the case of neither scheme did she
form a settled intention to proceed. Neither project moved out of the zone of
contemplation — out of the sphere of the tentative, the provisional and the
exploratory — into the valley of decision.
I accept the submission made on behalf of
the commissioners that they do not have to prove a desire as at April 5 1995 to
carry out a specific scheme of demolition or reconstruction of the building or
a substantial part thereof. It is sufficient if the commissioners contemplated,
in general terms, demolition or reconstruction of the building or a substantial
part of it. The desired works must fall within the general rubric of demolition
or reconstruction, but there is no necessity for the commissioners to be able
to point to a ‘finished’ scheme of demolition or reconstruction as at April 5
1995.
The facts and matters relied upon by the
commissioners as showing that they had formed the requisite desire at the
relevant time are and were exclusively within the knowledge of the
commissioners. Mr Johnson accordingly showed me a number of documents dated
between May 1994 and April 4 1995 which he relied on as showing the development
and formation of the requisite desire on the part of the commissioners. In
addition he relied on the evidence of Mr Downes, Mr Howes, Mr Dillon and Mr
Clutton for the purpose of confirming relevant aspects of the developing story as
it emerged from the documents. I need only give a light précis of this evidence
because the relevant details are accurately set out in Mr Johnson’s chronology
and are summarised in his skeleton argument, paras 6.8.1 and 6.8.2.
In their bare essentials the facts are
that in August 1994 the Urban Group of the commissioners, which was the
subgroup whose responsibility it was to make the relevant decision on behalf of
the commissioners, decided to agree in principle to redevelop the whole of the
site. There was an initial planning meeting with Westminster City Council in
November 1994. At about the same time Cluttons provided the commissioners with
a short list of four firms of architects who, it was proposed, should be
invited to produce proposals for the site. In the event letters were sent to
six firms on January 17 1995 inviting each of them to submit their respective
presentations for the purpose of enabling the commissioners to select a firm
for the redevelopment. On February 3 1995 one of the firms, Sidell Gibson
Partnership, submitted their proposal which was for office accommodation with
ground-floor retail units and some residential accommodation. On March 3 1995
the short listed firms, which by then had been reduced to three, were
interviewed by two of the commissioners, members of their staff and a
representative of Cluttons. Sidell Gibson were selected as the firm which had
produced the most attractive scheme for the site.
I accept the evidence given, for example
by Mr Dillon, that the commissioners took the view that this was an important
site in their West End property portfolio. They believed that it was ripe for
redevelopment and that they would not be prepared to relet it in its then
condition. In the light of this evidence, the documents and, in particular, the
evidence of Mr Howes, I accept the submission on behalf of the commissioners
that there was a clear desire on the part of the commissioners to carry out a
structural redevelopment of the whole of the site, including the building as
part of that site, as at April 5 1995.
I turn now to consider Mr Johnson’s
question (ii), namely did the commissioners serve a valid notice or notices to
determine the lease?
As to the notice given under the Act it
was in regular form. It was served by Cluttons as the authorised agents acting
on behalf of the commissioners and it was addressed to Aberdeen as the tenant.
The period of notice given was in excess of six months, but less than 12
months. The notice expressly referred to the demised premises and specified
para (f) as the ground of objection to the grant of a new tenancy. The
termination date referred to — October 10 1995 — was a permissible date in the
sense that it was one of the dates given in the break clause as being a date
when the lease could be determined. It is therefore necessary for me to decide
whether or not the break clause was effectively operated so as to determine the
contractual term of the lease on October 10 1995.
The commissioners rely on Scholl
Manufacturing Co Ltd v Clifton (Slim-Line) Ltd [1967] Ch 41 (CA),
which decided that one notice given under section 25, which was correctly
served in accordance with the requirements of that section, can terminate both
the contract and the tenancy. On behalf of Aberdeen it was argued that where, as
here, there are separate requirements respectively in the break clause and in
para (f) the correct course for the landlord to have taken was to serve
two separate notices.
I do not accept Aberdeen’s argument.
First of all the notice need not, in order to take effect as a section 25
notice, also comply with the requirements of the break clause and give written
notice of the landlords’ desire to demolish or reconstruct: Scholl ibid,
at p48D-E (Harman LJ) and p50C-D (Diplock LJ). Second, and in any event, the
notice can and should be read in conjunction with the covering letter. If one
reads both documents together it is, I think, very plain that the commissioners
were saying that they desired to redevelop the building within the meaning of
the break clause. The cases show that such documents must be construed in a
common-sense way and the court should not take an over-technical approach in
the face of clear language: see Giddens v Dodd (1856) 3 Drew 485,
especially at pp492 and 493 (RT Kindersley V-C); Keith Bayley Rogers &
Co v Cubes Ltd (1975) 31 P&CR 412 (Templeman J); Carradine
Properties Ltd v Aslam [1976] 1 WLR 442, especially at p444G-H
(Goulding J).
Mr Munby also submitted that the covering
letter and the notice were invalid because neither purported to determine the
tenancy on the correct date. As I understood it the basis of this submission
was that on the true construction of the break clause it would have been
necessary for the tenancy to expire no later than midnight on October 9 1995 so
as to enable the commissioners to carry out work ‘on’ October 10 1995. If, as
here, the tenancy did not and was not intended to expire until midnight on
October 10 this would be inconsistent with the wording of the break clause
which provides for a ‘desire to demolish’ etc ‘on or after the 10th day of
October 1995 or 2000 or 2005’. In these circumstances, Mr Munby submitted, the
commissioners would have been unable to carry out work ‘on’ October 10 1995.
In my judgment, this submission confuses
two quite distinct points. First, as a precondition to the operation of the
clause, the commissioners must prove that they had the requisite desire to do
the work on or after October 10 in the relevant year. Second, in order to
operate the clause, the commissioners must give at least six months’ written
notice ‘to expire on the relevant of the aforementioned dates’. Those words
should be given their ordinary meaning and, on the facts of this case, the
relevant date referred to is October 10 1995. Accordingly, I do not think that
the decision in Mannai Investment Co Ltd v Eagle Star Life Assurance
Co Ltd [1995] 1 WLR 1508* (CA) (which deals with the situation where the
notice gives the wrong date) assists Aberdeen.
*Editor’s note: Also reported at [1996] 1
EGLR 69
My conclusion is that the covering letter
taken in conjunction with the section 25 notice operated both as an effective
break notice as well as a good statutory notice under the Act.
In view of this conclusion it is not
strictly necessary for me to deal with the third preliminary issue which was
ordered to be tried by Lightman J. The issue is, however, a short one and this
is the point in the judgment when I should deal with it. The question here is
whether the covering letter which enclosed the notice itself operated so as to
terminate the lease pursuant to the break clause.
Mr Munby submitted that it was not so
effective because it only referred to clause 5(b) of the lease and did not in
terms spell out the formula which is to be found in that clause. He also
submitted that the letter did not, as a matter of construction, purport to be a
notice at all — it was only an explanation for the notice it enclosed. I reject
both these submissions. Even if, contrary to my view, the letter and the notice
did not amount to an effective statutory notice I am quite satisfied that they
were effective to operate the break clause. I have no doubt that this
communication was quite sufficient to bring to the mind of Aberdeen the commissioners’
desire to put an end to the lease on
(Harman LJ) and p52A–B (Diplock LJ).
I can now turn to question (iii) posed by
Mr Johnson. On the assumption that the commissioners have validly terminated
the lease, am I satisfied that they now have the requisite intention to carry
out works to the demised premises for the purposes of section 30(1)(f)?
The applicable legal principles are not
in dispute. First, the commissioners must prove that they have decided to carry
out works which fall within para (f).
Second, the commissioners must also prove
that there is a real chance of the works in question being carried out. On this
point I was shown the recent decision of Cadogan v McCarthy &
Stone Developments Ltd (CA) dated May 16 1996. It is informally reported at
[1996] EGCS 94 and the version I have been shown was unapproved by the Court of
Appeal. With that caveat I should quote the following passage from the
judgment of Saville LJ who said:
The reason why it must be established
that there is a reasonable prospect of obtaining permission is that otherwise
the landlords could only be said to be contemplating, rather than genuinely
intending, the desired course of action. A reasonable prospect in this context
accordingly means a real chance, a prospect that is strong enough to be acted
on by a reasonable landlord minded to go ahead with plans which require
permission, as opposed to a prospect that should be treated as merely fanciful
or as one that should sensibly be ignored by a reasonable landlord. A
reasonable prospect does not entail that it is more likely than not that
permission will be obtained.
Third, and this is trite law, the
landlords’ intention must be proved as at the date of the hearing which is held
to determine whether or not he is entitled to oppose the grant of a new tenancy
under para (f): Betty’s Cafés Ltd v Phillips Furnishing Stores
Ltd [1959] AC 20.
The fourth point of law in this case is
related to the fact that the commissioners intend to redevelop the whole of the
site by means of the grant of a long leasehold interest in conjunction with a
building agreement. An intention to redevelop by this means, provided that the
works fall within para (f), can qualify and satisfy the intention test: Gilmour
Caterers Ltd v St Bartholomew’s Hospital Governors [1956] 1 QB 387
(CA).
I must now say something about the facts.
The material before me reveals that the commissioners agreed, on July 3 1996,
to instruct Cluttons to market the whole of the site on the basis of a building
agreement followed by a 125-year lease. The commissioners also agreed that if
Cluttons were unable to implement this preferred option within a reasonable
time then the commissioners would themselves undertake the direct redevelopment
of the site.
At the time of the hearing before me five
shortlisted bids had been identified and were about to be considered by the
commissioners. The commissioners’ own scheme of redevelopment was the one which
had been drawn up by Sidell Gibson and for that scheme planning and
conservation area consent had been obtained. The five shortlisted schemes
emphasised an hotel and/or luxury accommodation redevelopments and were not along
the lines of that which had been drawn up Sidell Gibson. When the oral argument
in front of me ended on November 28 1996, I adjourned the hearing at the
request of the parties to await the outcome of a meeting of the commissioners
which had previously been fixed and which was due to take place on December 3
1996 for the purpose of deciding which if any of the five shortlisted bids
should be accepted or whether the commissioners would themselves undertake
direct redevelopment of the site.
That meeting duly took place. I have been
supplied with the minutes of that meeting, some further documents and the
supplementary written submissions of the parties both dated December 6 1996.
The parties were agreed that it was not necessary for me to hold any further hearing.
At the meeting of December 3 1996 the
commissioners had before them a paper from Mr Dillon (an urban estate manager
with the commissioners) which analysed the five bids and recommended acceptance
of the bid from Mr Trevor Osborne and Mrs Olga Polizzi (‘the Hawk bid’) to
purchase a building agreement and a lease for the site. This bid was regarded
as being the most attractive of the five which had been shortlisted. Like the
other four bids, the Hawk bid is different from the scheme which had been prepared
by Sidell Gibson and will require new planning permission. In particular it
proposes the creation of a four star hotel and a high quality restaurant. The
minutes, which are dated December 4 1996, record the commissioners’ decision to
accept the Hawk bid and their decision to instruct Cluttons and their
solicitors urgently to finalise the relevant legal documentation.
Under the Hawk scheme it is intended to
create parking space at the basement level of the building in an area which is
currently part of the premises which are demised to Aberdeen. There is also to
be a new lift core which, according to the evidence of Mr Morton (an architect
from Sidell Gibson who gave evidence for the commissioners), would make it
impossible for Aberdeen’s restaurant business to be conducted during the
carrying out of the works. He expected the works to take two years or more for
the whole site.
On the basis of Mr Morton’s evidence,
which included his very helpful overlay drawing which he prepared from plans
which had been provided by Hawk, I am satisfied that the Hawk scheme meets the
requirements of para (f) as works of demolition or reconstruction to the
demised premises or a substantial part thereof.
I also accept Mr Morton’s evidence that
it would not be possible for Aberdeen to run its business from these premises
while works are in progress. Indeed, it is plain that the works cannot be
carried out without vacant possession of the demised premises. I am satisfied
that the commissioners do intend to carry out these works as soon as possible
and that there is a very good prospect of them being able to do so.
In this connection I should mention that
one feature of the Hawk bid is that it does not provide for any coach lay-by
facility. This is, apparently, contrary to the current requirements of the
Westminster Highways Department in connection with hotel sites. In his evidence
Mr Richard Cresswell [frics], a
chartered surveyor and partner with Cluttons, said that he believed this would
not be a problem and that the restriction would probably be relaxed by
Westminster. He acknowledged that if it were not relaxed it would be critical
to the success or failure of the Hawk scheme. He also said that he thought it
would take six months from the date of the planning application to obtain
planning consent for the Hawk scheme.
In the material which was most recently
placed before me there is a letter dated December 2 1996 from architects
reporting to Hawk on a meeting in September 1996 with the highways engineer.
The letter anticipates that Westminster is likely to waive the coach lay-by
facility requirement. It states:
There will be one bus stop with a shelter
and one bus stand in Cockspur Street for the full length of the site thus
precluding any coach lay-by facility in this location.
In principle the Highways Engineer agreed
with the possibility of widening the carriageway in Spring Gardens to allow a
coach to negotiate the corners, park outside the proposed hotel entrance and
still leaves sufficient carriageway width for cars to gain access to the public
car park.
… I feel reasonably confident that we can
persuade the Highways Engineer to accept the single coach space.
On the material before me it seems very
probable that this potential stumbling block will be overcome.
My conclusion is, therefore, that
Aberdeen should be refused the relief sought in para l(a) and (b)
of its originating summons dated July 31 1995.