Landlord and Tenant Act 1954, section 30(1)(g) — Appeal from decision of Court of Appeal reversing decision of Walton J — Preliminary issue as to whether landlords were able to establish grounds for opposing grant of a new tenancy under section 30(1)(g) — Landlords were owners of land around the Paddington Basin of the Grand Union Canal and intended to use the Basin for the mooring of pleasure craft — They intended to occupy the premises in question, on the North Wharf, for purposes ancillary to the use of the ‘marina’, purposes involving a change of use which required planning permission — The tenants, the city council, who used the premises as a street cleansing depot, were themselves the planning authority and had made it clear that they would refuse such permission if an application were made for it — To succeed under section 30(1)(g) in opposing the tenants’ application for a new tenancy the landlords had to show (in addition to their bona fide intention to occupy the premises for the stated purposes, which was not in issue) a reasonable prospect of success in an appeal to the Secretary of State for the Environment against the expected refusal of permission by the tenant planning authority — In considering the prospect of success a hypothetical resumption of possession by the landlords had to be assumed — Held, affirming the decision of the Court of Appeal, that the landlords had established a reasonable prospect of success, for two reasons — First, the tenants’ objection to the perfectly acceptable use proposed by the landlords was not based on preserving the existing planning use of the premises, which would be a legitimate planning ground, but on the protection of the occupation of the present occupiers, which was not a legitimate planning ground — Second, on the assumption of the landlords’ possession of the premises, refusal of permission would leave the premises available for a range of uses not requiring permission, so that the continuation of the tenants’ present use was not an inevitable consequence — Appeal dismissed
This was an
appeal by Westminster City Council against a decision of the Court of Appeal,
reported at (1983) 268 EG 145, [1983] 2 EGLR 72, allowing an appeal by British
Waterways Board from a decision of Walton J, who had held that the board had
not established grounds under section 30(1)(g) of the Landlord and
Tenant Act 1954 to oppose the grant of a new tenancy to the city council of 33,
35 and 37 North Wharf Road, Paddington.
Barry Green QC
and Christopher Lockhart-Mummery (instructed by Terence F Neville, solicitor to
Westminster City Council) appeared on behalf of the appellant council; Kenneth
Bagnall QC and Kirk Reynolds (instructed by J M McKean, solicitor to British
Waterways Board) represented the respondent board.
In his speech,
LORD BRIDGE OF HARWICH said: This appeal arises from an application by the
appellants, made pursuant to section 24 of the Landlord and Tenant Act 1954 for
the grant of a new tenancy of nos 33, 35 and 37 North Wharf Road, Paddington
(‘the premises’). The respondents opposed the grant of a new tenancy on the
ground afforded by section 30(1)(g) of the Act that on the termination
of the current tenancy they intend to occupy the premises for the purposes, or
partly for the purposes, of a business to be carried on by them therein. As is
usual in such cases, it was agreed between the parties that the court should be
invited to determine as a preliminary issue whether the respondents, as
landlords, were able to establish the ground on which they relied pursuant to
section 30(1)(g). If so, the court would be precluded by the provisions
of section 31(1) from ordering the grant of a new tenancy. If not, the terms of
the new tenancy to be granted, if not agreed, would be referred for
determination by the court following a further hearing. In deciding the
preliminary issue Walton J held that the respondents failed to establish the
necessary intention to defeat the appellants’ claim. The Court of Appeal (Dunn
and Slade LJJ) reversed the decision of Walton J and dismissed the appellants’
application. From that judgment the appellants now appeal by leave of your Lordships’
House.
The premises
form part of a much larger area of land around the Paddington Basin of the
Grand Union Canal of which the respondents are the freehold owners. The
respondents intend to use the Basin for the mooring of pleasure craft. The word
‘marina’ affords a convenient, if not wholly accurate, term to describe this
use. The respondents intend to occupy the premises predominantly for purposes
ancillary to the use of the marina. The bona fides of this intention has
never been in dispute. The question is whether the respondents can establish
their ability to implement their intention, for the purposes of section 30(1)(g)
of the Act of 1954, having regard to the fact that this will involve the making
of a material change in the use of the premises (which was disputed before the
judge, but is now accepted by the respondents) and will therefore require the
grant of planning permission under section 23 of the Town and Country Planning
Act 1971. If the respondents applied for planning permission, the appellants
are the local planning authority to whom it would fall in the first instance to
decide whether permission should be granted or refused, thus making them judge
in their own cause. They have made it clear that they would refuse such an
application. From such refusal the respondents would be entitled, and in the
circumstances would no doubt be expected, to appeal to the Secretary of State
under section 36 of the Act of 1971. However, no application for planning
permission has in fact been made.
In these
circumstances the test to be applied by the court trying the issue raised by
the landlords’ opposition to the grant of a new tenancy is not in doubt. As it
was put in the judgment of Upjohn LJ, read and agreed to by Diplock LJ in Gregson
v Cyril Lord Ltd [1963] 1 WLR 41, 48:
It is an
objective test upon the evidence before the court: have the landlords
established, not what the planning authority or the Minister would determine,
but the different and practical question: would the reasonable man think he had
a reasonable prospect of giving effect to his intention to occupy? On the facts of this case . . . this amounts
to an inquiry whether the landlords on the evidence have established a
reasonable prospect either that planning permission is not required or, if it
is, that they would obtain it. This does not necessitate the determination by
the court of any of the questions which may one day be submitted to the
planning authority or to the Minister; it is the practical appraisal upon the
evidence before the court as to whether the landlords, upon whom, let me
stress, the onus lies, have established a reasonable prospect of success.
My Lords, I
believe this test has been consistently applied ever since and it is, if I may
respectfully say so, clearly right.
Before turning
to the planning issues on which this appeal ultimately depends, it is necessary
to dispose first of a question arising upon the construction of section 30(1)(g)
of the Act of 1954. Since there has been no actual planning application by the
respondents for permission to change the use of the premises and since we know
that any such application would be refused by the appellants as local planning
authority, what are the circumstances, necessarily hypothetical, in which the
respondents’ prospects of success in an appeal to the Secretary of State must
be considered? More particularly, are
the respondents’ prospects of success in such an appeal to be considered on the
assumption that, when the Secretary of State has to decide the appeal, the
respondents are entitled to possession of the premises and the appellants’
occupation has ceased? My Lords, it
seems to me that an affirmative answer to that question is inescapable. A
landlord opposing the grant of a new tenancy under section 30(1)(f) or (g)
seeks to establish what he intends
implementing an admittedly genuine intention is a suggested difficulty in
obtaining a necessary planning permission, the plain language of the Act of
1954 requires that his prospect of success in overcoming that difficulty should
be assessed on the footing that he is entitled to possession.
In the
overwhelming majority of cases arising for determination under section 30(1)(f)
or (g) of the Act the consideration to which I have drawn attention in
the foregoing paragraph will be of no significance, since the question whether
or not the tenant remains in occupation will normally be of no relevance to the
planning issue raised by the landlords’ proposal for development. It is
otherwise, however, in the present case where, as will shortly appear, the
appellants’ claim to remain in occupation is the central, if not the exclusive,
ground on which the appellants, as local planning authority, rely in support of
their contention that planning permission for the respondents’ proposed change
of use of the premises ought to be refused.
I hope I do
Walton J no injustice, but I find it difficult to resist the conclusion that he
approached the planning issue on the assumption of an uninterrupted occupation
of the premises by the appellants (which the grant of a new tenancy would, of
course, in practice ensure) and failed to appreciate that the Act of 1954
requires, for this purpose, a hypothetical resumption of possession by the
respondents to be assumed. This seems to be implicit in what the judge said:
I think, as
Mr Reynolds for the board submitted, that if once the board did indeed obtain
possession of the premises, there would appear to be no logical ground whatsoever
for thinking that (possibly subject to what I might describe as ‘marginal
negotiation’ with the planning authorities) the board would not be able in the
long run to carry out this eminently sensible project, in line with many other
similar developments by the board, thus providing much needed recreational
facilities for the inhabitants of the City of Westminster.
Later, when
discussing the respondent’s prospect of success in a notional planning appeal,
he said:
. . . what is
the choice facing the minister? It is on
the one hand to refuse planning permission, with the inevitable consequence
that the premises will continue to be used for the purpose of street cleansing
(use as a
street cleansing depot being the primary present use of the premises by the
appellants). But, if the notional planning appeal is considered on the
assumption that the respondent landlords are entitled to resume possession, the
continued use of the premises for the purpose for which they are presently used
by the appellant tenants is by no means an inevitable consequence of the
refusal of permission.
The Court of
Appeal, before whom the point had perhaps been more fully argued, correctly
approached the question of the respondents’ prospects of success in a notional
planning appeal on the basis of an assumed entitlement to possession. On the
face of it the respondents’ proposal to change the use of the premises is fully
supported by the appellants’ own district plan for the City of Westminster
prepared and adopted by them under the Town and Country Planning Act 1971 and
the Town and Country Planning (Local Plans for Greater London) Regulations 1974
(SI 1974 no 1481). Paragraph 7.15 of the written statement which forms part of
the plan, after a reference to the amenities associated with the River Thames,
continues:
In addition,
there are about four miles of the Grand Union Canal towpath in Westminster, as
well as the waterspace of the canal itself, much of which is relatively
under-used from a recreational point of view. The city council has already
opened the majority of the towpath as a canalside walk, in co-operation with
the London Canals Consultative Committee and by arrangement with the
landowners, the British Waterways Board. Ultimately it is intended that the
whole of the canalside walk should be completed in order to link up with
similar towpath walks which have been opened in neighbouring boroughs. In a
crowded urban situation both the Thames and the canal, including the canal
basins, offer unique opportunities to provide attractive waterside pedestrian
routes and for a range of suitable watersports such as pleasure boating.
The present
use of the premises is adequately described in an affidavit by the appellants’
area planning officer in the following terms:
The existing
use of the depot is as a ‘local government depot’. The description ‘local
government depot’ is merely intended as a convenient brief description of the
existing use which could be expanded as follows to describe the existing use:
‘a mixed and fluctuating use of the land and buildings on the premises as
workshops, offices, stores, messing facilities, parking for cars and parking
storage both in the open air and under cover for cleansing vehicles, emergency
snowfall vehicles, and street barrows all for purposes in connection with the
functions of a local government authority’. At the moment the said purposes are
principally those of the city cleansing department and to a lesser extent those
of the city engineers department.
The essence of
the argument for the appellants, which was accepted by Walton J, but rejected
by the Court of Appeal, may be summarised in the following propositions: (1)
the established existing use of the premises is as a street cleansing depot;
(2) the desirability of preserving an existing use of land may by itself afford
a valid planning reason for refusing permission for a change of use; (3) there
is no suitable alternative site for use as a street cleansing depot, which
serves a vital public purpose; (4) therefore it is desirable to preserve the
existing use of the premises; (5) these considerations afford a sufficiently
weighty planning objection to the respondents’ proposal to change the use of
the premises to prevent them discharging the onus of proving a reasonable
prospect of success in obtaining the planning permission necessary to the
implementation of their intention to use the premises for their own business
purposes.
For my part, I
find it difficult to see how this argument can be sustained at all, once it is
appreciated that the respondents’ prospects of success in a notional planning
appeal must be considered on the assumption that they, not the appellants, are
in possession. The appellants have given no indication of an intention to
exercise any power they possess to acquire the premises compulsorily for a
necessary public purpose. As it seems to me, the preservation of an existing
use (which is temporarily suspended) cannot afford a ground to refuse
permission for an otherwise acceptable change of use, unless it can be shown
that the refusal may reasonably be expected to lead to a resumption of the
suspended use. This raises questions as to the true scope, for planning
purposes, of the established existing use of the premises to which I must
shortly revert.
First,
however, I should advert to the second of the five propositions, as I have
summarised them above, on which the appellants rely. This is a proposition of
law which I fully accept. It is supported by the decision of the Court of
Appeal in Clyde & Co v Secretary of State for the Environment
[1977] 1 WLR 926. In that case it was held that the desirability of preserving
for residential use, in an area suffering from a shortage of residential
accommodation, part of a new block of flats, hitherto unoccupied, was a valid
ground for refusing permission for a change of use to offices. The correctness
of the decision is, in my respectful opinion, beyond argument. Counsel for the
appellants in the instant case much relied on a passage from the judgment of
Sir David Cairns in that case at p 936 where he said:
The fact that
the refusal of planning permission for a change of use cannot ensure that a
current use which is a permitted use will continue was as already indicated the
ground of the refusal of planning permission in the case of the Dartford
cinema. It is equally true that whereas in the present case the permitted use
has not been stated, the refusal of an application to change of use cannot
ensure that permitted use will ever be started. This was a point strongly
relied on. I do not find it a compelling argument. The need for housing is
certainly a planning consideration. If permission is given for office use, the
permission will almost certainly be implemented and the building will be
unavailable for housing. If permission for office use is refused, there is at
least a fair chance that the building will be used for housing rather than being
allowed to stand empty.
I respectfully
agree with this passage in substance, though I do not accept every nuance of
its language as expressing the law with perfect accuracy. The refusal of
planning permission for office use of part of an unoccupied block of
purpose-built flats in an area suffering a shortage of residential
accommodation must, I should have thought, as a matter of overwhelming
probability, lead to the consequence that the accommodation would in due course
be put to use for its designed residential purpose. Thus, in the concluding
sentence of the passage quoted, the phrase ‘at least a fair chance’, on which
counsel in this appeal particularly relies, suggests in my respectful opinion,
an unduly and, on the facts, unnecessarily lax criterion. In a contest between
the planning merits of two competing uses, to justify refusal of permission for
use B on the sole ground that use A ought to be preserved, it must, in my view,
be necessary at least to show a balance of probability that, if permission is
refused for use B, the land in dispute will be effectively put to use A. But,
this apart, Clyde’s case was concerned with a contest between two of the
broadest classes of use, residential use versus office use. It is so far
removed from the
assistance from it.
To determine
the scope, for planning purposes, of an existing use of land established by de
facto user for a sufficient period to put it beyond the reach of
enforcement procedures (as opposed to a use commenced pursuant to an express
grant of planning permission), it is necessary to answer two questions which
are primarily questions of fact. First, what is the precise character of the
established use? Second, what is the
range of uses sufficiently similar in character to the established use to be
capable of replacing the established use without involving a material
change? Behind this second question lies
a potential question of law in that there may be some uses of such a character
that a reasonable tribunal of fact, directing itself correctly in law, must
necessarily conclude that they lie within that range, or beyond it, as the case
may be.
The evidence
bearing upon the issue of the scope of the appellants’ use of the premises was
again given by their area planning officer, in his affidavit, immediately
following the passage I have quoted earlier. He added:
But I submit
that the plaintiffs may use the premises for any of their departments provided
the existing use is not materially changed. In planning terms, the identity
of the occupier who carries on such use is irrelevant. Accordingly the
expression ‘local government depot’ is not intended to imply that there is any
relevance in the fact that the occupier is a local authority. It is the
activities which it carries on at the depot which are relevant and it is
merely a matter of convenience and brevity that these can be described as ‘use
as local government depot‘.
In this passage
I have italicised the words which seem to me of importance. Even though the
witness may have strayed from his proper province of fact into an area of law,
what he said was clearly correct. So long as the mixture of uses on the
premises, which the judge held to be the relevant planning unit, remain substantially
unchanged, there would be no material change of use. Those uses, as already
indicated, included workshops, offices, stores, messing facilities and parking
for a variety of vehicles both under cover and in the open. This is just such a
mixture of uses as would be required by a wide variety of undertakings whose
business was the operation of some kind of vehicular transport and who required
a base from which to operate. Whether, in any particular case, the proposed use
of the premises by such an undertaking would involve a material change
of use would depend on the detailed nature of the proposal. But it would be of
no relevance to the use of the premises to inquire for what purpose the
vehicles parked there were to be used when they left their base. It seems to me
to follow from this that the appellants cannot sustain the first proposition on
which their contentions essentially depend, viz that the established use of the
premises is properly defined, in planning terms, as use as a street
cleansing depot.
Walton J, in
discussing the question (now no longer in issue) as to whether planning
permission was required for the respondents’ proposed use of the premises,
expressed himself in terms which disclosed a misapprehension on this point. He
said:
In the
existing state of affairs, those uses[sc the various uses presently being made
of the premises by the appellants] are ancillary to the cleansing of the
highways in the City of Westminster, and the maintenance of the highways in
that city.
The concept of
a single planning unit used for one main purpose to which other uses carried on
within the unit are ancillary is a familiar one in planning law. But it is a
misapplication of this concept to treat the use or uses of a single planning
unit as ancillary to activities carried on outside the unit altogether.
These
considerations lead to the conclusion that, whatever be the correct description
of the established existing use of the premises in planning terms, use as a
street cleansing depot is only one of a substantial range of uses which could
properly be carried on without involving a material change of use. It follows
that in the notional planning appeal which your Lordships must contemplate the
respondents have established, by the test laid down in Gregson v Cyril
Lord Ltd [1963] 1 WLR 41, 48, at least a reasonable prospect of success for
two substantial reasons. The first is that the objection to the respondents’
proposed use of the premises, in itself a perfectly acceptable use, is based
not on the desirability of preserving the existing planning use of the
premises, which would be a legitimate planning ground of objection, but on the
desirability of protecting the occupation of the present occupier, which is not
a legitimate planning ground of objection. The second is that, on the
assumption that the respondents were in possession of the premises, refusal of
planning permission for their proposed use would leave the premises available
for a range of uses not requiring planning permission, and there is no evidence
to establish the probability that, in these circumstances, the appellants would
be able to resume possession of the premises for use as a street cleansing
depot.
Accordingly, I
propose that the appeal be dismissed with costs.
LORDS FRASER
OF TULLYBELTON, WILBERFORCE, SCARMAN and ROSKILL agreed with the speech of Lord
Bridge of Harwich and, for the reasons given by him, were in favour of
dismissing the appeal. They did not add any other observations of their own.
