Application for new tenancy of tennis club – Landlord objecting – Landlord concluding agreement with potential developer subject to developer obtaining planning permission – Permission refused on ground of loss of recreational facility – Preliminary issue whether landlord able to show settled intention to demolish or reconstruct – Landlord and Tenant Act 1954 section 30(1)(f) – Judge refusing application – Appeal allowed
The tenants, the trustees of Thames Ditton Lawn Tennis Club, held the club’s land and buildings under a lease granted in September 1974 for a term of 21 years. The site, which included 10 tennis courts and a pavilion, covered an area of 2.4 acres. The landlord owned the land as a trustee. In September 1994 the tenants made a formal request under section 26 of the Landlord and Tenant Act 1954 for a new tenancy. The landlord opposed the application on the grounds contained in section 30(1)(f) of the Act. In January 1995 the tenants issued their application and the judge directed a preliminary issue to determine the question whether the landlord was able to show “a firm and settled intention . . . to demolish or reconstruct the premises”. In May 1995, before the hearing, the landlord entered into an agreement with a developer to grant a 150-year lease at a premium of £900,000 subject to the developer obtaining planning permission. An application for planning permission had already been made in April 1995, but was refused in February 1996 on the ground of the loss of a recreational open space. The landlord decided to seek to demolish the tennis club and turn the site into a “brown field” site, for which planning permission might be obtained in the future when no objection could be taken that a sporting facility would be lost. At the hearing, the landlord’s expert gave evidence that the proposed works could be carried out without planning permission. The tenants’ expert did not disagree, but counsel for the tenants argued that it was not a matter for evidence but a matter of law, and that some of the works would require planning permission. The judge concluded that the landlord would be able to carry out all the works without planning permission and decided the issue in favour of the landlord. The tenants appealed.
Held The appeal was allowed.
1. It was not necessary for the court to resolve the question whether the landlord’s plans required planning permission. However, it was necessary to apply an objective test (see Gregson v Cyril Lord [1963] 1 WLR 41 per Upjohn LJ at p48) as to whether the landlord had established a “reasonable prospect” of success: see Cadogan v McCarthy & Stone Developments [1996] EGCS 94.
2. “Premises” in section 30(1)(f) could not mean bare land with no buildings on it: see Housleys Ltd v Bloomer-Holt Ltd [1966] 1 WLR 1244.
3. The issue as to whether the digging out of the tennis courts was “engineering or other operations”, was one neither of pure law nor pure fact. The meaning of a statute was an issue of law, but its application to a particular set of primary facts was a question of fact and degree. The judge had erred in deciding that the landlord did not require planning permission for any of the proposed demolition work.
4. The inspector had rejected the earlier application because of the loss of recreational facilities, which loss would also occur if the land were turned into a derelict “brown field site”. Therefore the landlord did not have a reasonable prospect of being able to carry out the proposed works, and so could not show a firm and settled intention to demolish the premises within the meaning of section 30(1)(f).
Michael Barnes QC and Paul Randolph (instructed by Russell Jones and Walker) appeared for the appellants; Lionel Read QC and Martin Rodger (instructed by Withers) appeared for the respondent.
