Landlord and Tenant Act 1954, section 30(1)(f) — Court’s comments on procedure and tactics and criticism of merits of appeal — ‘Playing the system’ — British Railways Board wanted possession of part of a goods yard leased by them to the applicants in order to redevelop the yard in conjunction with a firm which would build a supermarket and car parks thereon — Evidence clearly in support of board’s opposition under section 30(1)(f) to the applicants’ claim for a new tenancy — Board had made a decision to demolish or reconstruct the yard and had only been prevented from taking further steps by delaying tactics of applicants — No misdirection by judge, who would indeed have acted perversely if he had decided otherwise than in favour of board — Appeal dismissed
This was an
appeal by A J A Smith Transport Ltd against a decision of Judge Blackett-Ord,
Vice-Chancellor of the County Palatine of Lancaster, sitting as a county court
judge at Blackburn County Court. The appeal was against the judge’s dismissal
of the claim by the applicants for a new tenancy of part of a goods yard at
Clitheroe railway station in Lancashire. The claim was opposed by the
respondents, British Railways Board, on the ground set out in section 30(1)(f)
of the Landlord and Tenant Act 1954.
W H Goodhart
QC and J Dowse (instructed by J L Lumley, of Clitheroe & Whalley) appeared
on behalf of the appellants; Derek A Wood QC and J L Hand (instructed by Evan
Harding, chief solicitor, British Railways Board) represented the respondent
board.
Giving
judgment, LAWTON LJ said: This is an appeal by A J A Smith Transport Ltd
against an order made by His Honour Judge Blackett-Ord, Vice-Chancellor,
sitting as a county court judge on June 4 1980 whereby it was adjudged that
their application for a renewed tenancy be dismissed on the grounds set out in
section 30(1)(f) of the Landlord and Tenant Act 1954. The order was in these
terms:
It is ordered
that the applicants’ application for the grant of a new tenancy in respect of
the premises, the warehouse and adjoining land in former goods yard at
Clitheroe Lancashire be dismissed with costs.
That form of
order is, in itself, interesting because it implies that the applicants were
seeking to say that the respondents, the British Railways Board, had duly
terminated their lease of premises and that, under the provisions of the
Landlord and Tenant Act 1954, they were entitled to a new lease. The case was
conducted before the learned Vice-Chancellor on that basis. No point was taken
before the Vice-Chancellor to the effect that the respondents had not duly
terminated the lease which the applicants at all material times had.
Having been
dissatisfied with the Vice-Chancellor’s order, the applicants appealed to this
court. The notice of appeal is on the basis that the lease was duly terminated
so as to give the county court jurisdiction to grant a new lease. Indeed, it
says this:
. . . that
the applicants are entitled to a new tenancy of the above-mentioned premises
and that it may be ordered that these proceedings be remitted to the Blackburn
County Court to determine the terms of such new tenancy in accordance with the
above-mentioned Act. . . .
The court
assembled expecting to have to deal solely, having regard to the terms of the
notice of appeal, with the question as to whether, in all the circumstances of
this case and as a matter of law, the Vice-Chancellor had been right in his
determination that the applicants were not entitled to a new lease. The
applicants today had the benefit of being represented by Mr Goodhart. He had
not represented them in the Blackburn County Court; they had then been
represented by another leading counsel. When Mr Goodhart rose to open the
appeal he informed us that there were two points which could be taken on behalf
of the applicants: one which was dealt with in the notice of appeal and one
other which went to the validity of the notice terminating the lease, which he said
he did not propose to deal with before us.
The court was
somewhat surprised at this because it seemed to us that what Mr Goodhart on
behalf of the applicants was doing was blowing hot and cold. He was asking the
court to say that his clients were entitled to a new lease. They could only be
entitled to a new lease if the existing lease had been duly terminated, but he
went on to say that, on some other occasion if this court did say that his
clients were not entitled to a new lease, his clients might say that the
original lease had never been properly determined. This was an unusual
situation for the court to be met with and it was one which we did not find
attractive — the more so as there were indications that this appeal, which has
little merit as I shall demonstrate shortly, was one step in a delaying action
to avoid giving up possession of the premises in dispute. It seemed to us that
the tactics which Mr Goodhart was adopting on behalf of his clients were
tactics which were designed, if I may use a colloquial expression, to play the
system so that there would be further delays.
We gave Mr
Goodhart an opportunity of considering what he should do because, when we first
considered the matter, it seemed to us that he should be put to his election as
to whether he wanted to go on with this appeal or abandon it and take some
other proceedings elsewhere to establish that his lease had never been properly
determined. But, after argument, it occurred to us that there were difficulties
in that approach. After further discussion with counsel the question arose as
to whether this was not a case in which the unusual powers given by Order 20,
rule 8, as applied to this court by Order 59, rule 10 and section 43 of the
Supreme Court of Judicature (Consolidation) Act 1925, might be used. This court
has jurisdiction to order an amendment of pleadings in order that the real
matter in issue can be tried.
The real
matter in issue in this case is as follows. The defendants want possession of
the premises. The plaintiffs do not want them to have possession of the
premises. They want to remain in possession. Nowadays, under an amendment to
the Landlord and Tenant Act 1954, which has become section 43A of that Act, the
applicants in the Blackburn County Court could have pleaded their case in the
alternative. They could have said that the notice purporting to determine the
tenancy issued pursuant to the Landlord and Tenant Act 1954 was a bad one.
Alternatively, if it was a good notice, they could have asked for a new tenancy
pursuant to the terms of that Act. They had done nothing of the kind; and it
did occur to us that it might be a sensible course to order the applicants to
amend their originating application in the Blackburn County Court so as to
raise the issue as to whether the original notice served by the respondents
was a valid notice, and also to amend their notice of appeal so that all the
matters in dispute could be dealt with in this court.
This was a
course which Mr Wood, on behalf of the defendants, was willing to consent to,
but he went on to point out that he would not thereby be abandoning any defence
of estoppel which he might have. Mr Goodhart, on behalf of the plaintiffs,
submitted that this court had no jurisdiction to order any such amendment of
the pleadings. We adjourned to consider the matter which had arisen and,
without making any finding as to whether we had or had not jurisdiction to
order an amendment of the type which we had discussed in argument with counsel,
we came to the conclusion that we should give Mr Goodhart an opportunity of
opening the appeal as it stood on the notice of appeal. It was pointed out to
him by Brandon LJ that he was, if he wished, at liberty not to go on with his
appeal. He elected to go on with it as it was put in the notice of appeal and
he advanced arguments in support of that appeal.
I, for my
part, make no findings as to the legal consequences as to what has happened. It
may be that hereafter counsel will have to argue what those consequences are
but, for the purposes of my judgment, I am going to confine myself to the short
facts in this case and the law applicable to them. The relevant statutory
provision is contained in section 30(1)(f) of the Landlord and Tenant Act 1954.
Subsection (1) reads as follows:
(1) The grounds on which a landlord may oppose an
application under subsection (1) of section 24 of this Act are such of the
following grounds . . . (f) that on the termination of the current tenancy the
landlord intends to demolish or reconstruct the premises comprised in the
holding or a substantial part of those premises or to carry out substantial
work of construction on the holding or part thereof and that he could not
reasonably do so without obtaining possession of the holding.
Before the
Vice-Chancellor the sole issue was whether, on the evidence, the landlords —
that is to say the British Railways Board — intended to demolish or reconstruct
the premises comprised in the holding; it being accepted that, if the British
Railways Board did so intend, they would require possession of the whole of the
premises occupied by the applicants.
The applicants
are haulage contractors and, for some time now, they have held under lease from
the British Railways Board and their predecessors a tenancy of part of the
goods yard at Clitheroe Station in Lancashire. They had a tenancy which seems
to have been, for most of the time at any rate, a periodic tenancy. In 1978 and
1979 the British Railways Board were minded to redevelop the old station yard.
What they had in mind to do was to grant a building lease to a firm of grocers
in Preston, E H Booth & Co Ltd, who undertook under that building lease to
build a supermarket together with the necessary car-parks for such a business
enterprise. In order to accomplish this end the British Railways Board had to
obtain planning permission. They got planning permission and, as a result,
provided they had a binding agreement with the prospective lessees, they were
in a position to go ahead.
There was one
small difficulty in their way. The local authority, whose planning committee
had granted planning permission, owned a small strip of land running alongside
the old goods yard and, unless the British Railways Board had rights of way
over this small strip of land, there would be no access to the planned
car-parks. It followed that they had to be sure of being able to get control of
that small strip of land before the building project could go ahead.
Now, the
prospective building lessees and, presumably, the local authority too, knew
that, until the British Railways Board could get possession from those who were
occupying the goods yard, it would be impossible to start work; and this was a
very important matter because, as Mr Wood, on behalf of the British Railways
Board, has told us, building costs were going up all the time. He informed us —
and there is no reason to doubt the accuracy of what he told us — that, as a
result of the delay which has come about by reason of this appeal, the building
costs have gone up by something in the region of a quarter of a million pounds.
It is clear that the fewer further delays there are the better it will be for
all concerned, if not for the applicants.
It follows,
therefore, that the actual signing of a building lease and building contracts
and the like had to be delayed until such time as the British Railways Board
could be sure of getting possession and, until they had obtained an order
against the applicants, they could not be sure of getting possession. The
applicants, again playing the system, have used the lack of certainty about
getting permission for various small matters as a reason for saying that the
British Railways Board do not intend to demolish or reconstruct the premises.
The situation
is as follows. E H Booth & Co Ltd have agreed terms, but they are not
signed, with the British Railways Board for the development of the railway
yard. They have agreed the terms but have not signed a building contract for
the work which will be required to be done under the development plans.
Attached to the development plans are approved plans. E H Booth & Co Ltd
retained an architect for the purposes of providing approved plans. The local
authority have told British Railways Board that they will sell them the land
which borders the old goods yard and which is necessary for access to the
proposed car-parks for the sum of £1, which indicates to me that they do not
attach much importance to that particular piece of land.
The only
matter which is outstanding is this. E H Booth & Co Ltd at the trial before
the Vice-Chancellor said that they had got a builder in mind. He was one who
had done work of a similar kind for them elsewhere in Lancashire, and they had
no doubt that he would be willing to undertake this work of development at
Clitheroe Goods Yard. The applicants have fastened on to that one matter,
together with the problem of the little strip of land, in support of their submission
that the British Railways Board’s plans are still only tentative, exploratory
and provisional and they have not yet moved into the realm of — to use Lord
Asquith’s words in another case — the valley of decision.
In my
judgment, there is nothing whatsoever in that argument. Indeed, if the
Vice-Chancellor had not found that the British Railways Board had made a
decision that they would demolish or reconstruct the existing railway yard, he
himself would have been acting perversely. The evidence in this case is
overwhelming. The British Railways Board had got to the stage of decision and
the only reason they have not taken a further step forward has been the
delaying tactics adopted by the applicants in this matter.
It is also
said that the learned Vice-Chancellor misdirected himself in law at the trial.
He reminded himself of what the law was by looking at and considering the case
of Reohorn v Barry Corporation [1956] 1 WLR 845 at p 849, and he
also considered the judgment of Denning LJ (as he then was) in the case of Fisher
v Taylors Furnishing Stores Ltd [1956] 2 QB 78. It is not submitted by
Mr Goodhart that either of those cases was wrongly decided. In any event, they
are both binding on us and it is impossible to say that the learned
Vice-Chancellor did not direct himself as to the legal meaning of the word
‘intends’ as used in section 30(1)(f) of the Landlord and Tenant Act 1954.
There is
nothing whatsoever in this appeal except its use for the purposes of delay. It
is a use of which I disapprove. I would dismiss the appeal.
I would add
this. As a result of our decision to hear this appeal and not to deal with the
matter by way of amendment of the pleadings, it may be that further proceedings
will be necessary. It is not for me to make any comment about the form those
proceedings should take or what defences should be available to anybody. All I
do wish to say is this. They may be taken in a county court in Lancashire and
it is to be hoped that the circuit administrator of that circuit and the county
court judge who is asked to deal with the matter will do everything in his
power to ensure that any further proceedings are dealt with with the maximum
possible speed and, in so far as it is possible to abridge time, time should be
abridged. The same should apply if there are further proceedings in the High
Court.
Agreeing,
BRANDON LJ said: I regard this appeal as coming as near to an abuse of the
process of the court as it is possible to go without crossing the line. Under
the relevant provisions of the County Courts Act 1959 an appeal in a case of
this kind lies only on a question of law. There are only two questions of law
that could be canvassed in this case.
The first was
whether the learned judge had directed himself
provision. As to that, it was as clear as it could be from his judgment that he
had correctly directed himself, and it was not even suggested in argument that
he had not done so.
The only other
point of law that could be raised was whether there was any evidence upon which
the judge could make the finding of fact about the intention of the British
Railways Board which he did. As to that I agree with Lawton LJ that there was,
in effect, no evidence upon which he could have come to any other conclusion,
and that any other conclusion would have been perverse.
In these
circumstances, for an appeal to be prosecuted to this court comes, as I have
indicated, as near to the line of abuse of the process of the court as can readily
be imagined. I, too, would dismiss the appeal.
TEMPLEMAN LJ
agreed with both judgments.
The appeal
was dismissed with costs, to be taxed on the common fund basis.
