Business lease – Application for new tenancy – Appellant tenant undertaking over many years various commercial activities on site ars in breach of planning control – Judge refusing to grant new tenancy – Section 30(1)(c) of Landlord and Tenant Act 1954 – Reason connected with tenant’s use or management of holding – Whether illegal use of site a relevant consideration in applying section 30(1)(c) – Whether lawful use certificate available such that appellant able to carry out lawful activities in future – Appeal dismissed
Since 1978, the appellant had occupied a site that was owned by the respondent. He carried on various commercial activities, including a haulage business, the crushing and recycling of concrete waste, skip and bin hire and a demolition business. Although his occupation had originally been pursuant to a lease, the lease had been terminated, in 1990, by the then owner of the land by the service of a notice under section 25 of the Landlord and Tenant Act 1954. Some of the appellant’s activities were in breach of planning control, including the 1989 enforcement notice issued by the local planning authority in respect of his use of the site as a haulage yard. He had also failed to comply with a 2007 breach of condition notice concerning conditions in a temporary permission for concrete-crushing, in that he had neither ceased that activity upon the expiry of the permission in 2001 nor restored the land thereafter. As a result, he was guilty of criminal offences.
The appellant sought the grant of a new tenancy under the 1954 Act and claimed to have acquired title to the site by adverse possession. The respondent contended that the court should refuse a new tenancy for “any other reason connected with the tenant’s use or management of the holding” within section 30(1)(c). The judge rejected the adverse possession claim and also refused to grant a new tenancy. In reaching that decision, he found that most of the appellant’s activities on the site were illegal and that the appellant had no intention of ceasing such use.
The appellant appealed. He contended that it was irrelevant to the exercise of the discretion under section 30(1)(c) whether he would, as a matter of fact, continue to commit criminal offences under a new tenancy; this would be relevant only if the grant of a new tenancy necessarily involved such offences. He further argued that he could obtain a lawful use certificate for the skip and bin hire and the demolition businesses, and that, in that event, he would confine himself to such legitimate uses thereafter. In the meantime, an inspector gave his decision refusing such a certificate in respect of the skip and bin hire business.
Held: The appeal was dismissed.
A “reason connected with the tenant’s use or management of the holding” could include all matters concerning the tenant’s use of the land and an existing illegal use would be a relevant consideration: Turner & Bell v Searles (Stanford-Le-Hope) Ltd [1977] 2 EGLR 58; (1977) 244 EG 1023 applied. That consideration could not be confined to cases where the grant of a new tenancy would necessarily involve an illegal use; such a construction would be contrary to common sense and the wording of the statute.
In the light of the inspector’s decision, the appellant had no prospect of obtaining a lawful use certificate in respect of the skip and bin hire business. With regard to the demolition business, even assuming that a lawful use certificate might be granted for such use, the evidence indicated that to the appellant would continue to flout planning control. The judge had seen ample evidence upon which he could conclude that the appellant did not intend to confine himself to lawful uses of the land were a new tenancy to be granted. His past record of breaches, his unreliability as a witness and the financial incentives for breaches militated against that happening. In the event, not only had the judge been entitled to exercise his discretion to refuse a new tenancy, but it would have been perverse to have granted one.
Graham Platford (instructed by Spratt Endicott, of Banbury) appeared for the appellant; Stephen Jourdan and Mary Cook (instructed by Lovells LLP) appeared for the respondent.
Sally Dobson, barrister
