Landlord and tenant — Landlord and Tenant Act 1954 Part II — Landlord’s opposition to new tenancy — Ground (g) — Landlord’s chance of obtaining planning permission without personal occupancy condition tied to tenant company — Whether landlord established necessary intention — Burden of proof on landlord — Chance of obtaining planning permission — Whether Court of Appeal entitled to consider planning permission granted after date of county court hearing
The appellant landlord owned a 3 acre property let to the respondent
tenant. The tenant used the property as an off-airport car park. The landlord
served a notice to terminate the tenancy that stated that any application for a
new tenancy would be opposed under para (g) of section 30(1) of the
Landlord and Tenant Act 1954, as the landlord intended to run a car-park
business himself. The tenant served a counternotice and applied to the county
court for a new tenancy. Planning permission for the car-parking use of the
property was subject to a personal occupancy condition in the name of the
tenant company.
In April 1999 the local planning authority’s officers considered
that there was no longer any objection to the use of the property for car
parking or to the removal of the named company operator condition. In June 1999
the county court judge, who had rejected the evidence of the landlord’s expert
on the likelihood of obtaining planning permission enabling the landlord to use
the property for car parking, made a declaration that the landlord had not
established any ground of opposition to the grant of a new tenancy. An
application on behalf of the landlord for planning permission to use the
property for car-parking use, without the personal occupancy condition that
named the tenant, was eventually granted in July 1999. The tenant commenced
proceedings for judicial review of that decision. The landlord appealed the
decision of the county court.
The trial judge had given insufficient regard to the material, from
the local planning authority’s officers, that there was, by April 1999, no
overriding planning objection to the removal of the named company operator for
the property. The Court of Appeal was entitled to take account of the July 1999
planning permission, even though it was not available to the judge, and was
subject to the judicial review proceedings. The hurdle to be surmounted by the
landlord, under section 30(1)(g) of the 1954 Act, was by no means a high
one. He did not have to demonstrate on a balance of probabilities that
permission would be granted. He had to show that there was a real, not merely a
fanciful, chance. Even if the judicial proceedings were successful, there
remained a real, not merely a fanciful,
chance that, in the end, the landlord would obtain the permission he
required to enable him to use the property.
Accountancy Personnel Ltd v Salters’ Co [1972] EGD
461
Allied London Property Investment Ltd v Secretary of
State for the Environment (1996) 72 P&CR 327
Cadogan v McCarthy & Stone Developments Ltd
[1996] EGCS 94
Gregson v Cyril Lord Ltd [1963] 1 WLR 41; [1962] 3
All ER 907; [1962] RVR 730
Pye v Secretary of State for the Environment, Transport
and the Regions [1998] 3 PLR 72; [1999] PLCR 28
R v London Docklands Development Corporation, ex parte
Frost (1996) 73 P&CR 199
Westminster City Council v British Waterways Board [1983]
2 EGLR 72; (1983) 268 EG 145, CA
Westminster City Council v British Waterways Board [1985] AC 676; [1984] 3 WLR 1047; [1984]
3 All ER 737; (1984) 83 LGR 113; 49 P&CR 117; [1984] 2 EGLR 109; 272 EG
1279; [1985] JPL 102, HL
Appeal under Part II of the Landlord and Tenant Act 1954
This was an appeal by the landlord, Charles John Sargent, from a
decision of Judge Corrie, in Reigate County Court, making a declaration on a
preliminary point in proceedings by the tenant, Gatwick Parking Services Ltd,
for a new tenancy under Part II of the Landlord and Tenant Act 1954.
Leatherhead) appeared for the appellant, Charles John Sargent.
Chelmsford) represented the respondent, Gatwick Parking Services Ltd.
LAWS LJ: This is an appeal, brought with permission granted
by myself, against an order made by Judge Corrie in Reigate County Court,
sitting at Oxford on 16 June 1999, when he declared that the defendant, the
appellant before us, had not established any ground upon which he was entitled,
under section 30 of the Landlord and Tenant Act 1954, to oppose the application
of the claimant (the respondent) for a new tenancy of certain premises at Westlands
Farm, Burstow, Horley, Surrey.
The premises in question, about 3 acres in area, are close to
Gatwick Airport and lie underneath the principal flight path. They are in the
metropolitan green belt. They have been in the ownership of the appellant, and
his father before him, for 50 years or so, and are occupied by the appellant’s
tenant (the respondent), a private limited company. The respondent operates the
business of an off-airport car park on the premises. It is the respondent’s
only business. The airport environment and the air traffic have blighted the
land for agricultural use.
The appellant now desires to run a car-park business himself on the
site, through a company that he has incorporated by the name Autopark (Gatwick)
Ltd. He served the statutory notice to quit, under section 25 of the Landlord
and Tenant Act 1954, upon the respondent/tenant on 19 November 1997. The
respondent served a counternotice under the Act on 11 December 1997, and
applied for a new tenancy under section 24 on 11 March 1998.
As is well known, under the statutory scheme for business tenancies
established by the Act of 1954, such an application for a new tenancy may only
be successfully resisted by a landlord on certain specified grounds. One such
ground arises where the landlord proves that he intends to occupy the premises
himself, for the purpose of a business, through the medium of a limited company
controlled by him that also qualifies: see section 30(1)(g) and section
30(3). However, although the word ‘intention’ or its cognate verb is used in
the statute, the question is not a purely subjective one depending solely on
the landlord’s state of mind.
In Gregson v Cyril Lord Ltd [1963] 1 WLR 41, Upjohn
LJ, whose judgment was read and agreed to by Diplock LJ, said at p47:
It seems to me that the test under the second heading mentioned at
the beginning of this judgment is not subjective, that is to say, purely a
matter of the state of mind of the respondents, no doubt acting on the bona
fide advice of their experts. In my judgment it is essentially an objective test,
that is to say, would a reasonable man, on the evidence before him, believe
that he had a reasonable prospect of being able to bring about his occupation
by his own act of volition? This, of course, is a question of fact to be
determined on all the evidence that is before the court.
Moreover, in a case where the landlord’s aspiration can only
lawfully be fulfilled if he obtains a planning permission, this objective
approach is to be followed in a way described by Savile LJ, as he then was, in Cadogan
v McCarthy & Stone Developments Ltd [1996] EGCS 94. We have been
provided with a transcript. This passage appears at p4:
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.
In the present case, the appellant resisted the respondent’s
application for a new tenancy on the ground provided for by section 30(1)(g).
On 22 July 1998 the district judge ordered a preliminary issue to
be set down, upon the question of whether the requisite intention was
demonstrated by the landlord. The landlord needed a permission because the
permission under which the respondent operated was subject to a personal
occupancy condition, so that only the respondent might enjoy it. The issue
before Judge Corrie, who tried the preliminary issue and whose decision is the
subject of this appeal, was only whether the appellant had demonstrated a
reasonable prospect of obtaining permission himself. It will thus be evident
that the planning history of the site was of some importance, and it is
convenient to set it out before addressing the issues that fall for
determination on the appeal.
The respondent first used the site for a car-parking business
between 1981 and 1983. That use was unauthorised, and the Secretary of State
refused an application for planning permission on 23 March 1983. The local
planning authority served an enforcement notice on the respondent
on 22 September 1987. The respondent appealed against that to the
Secretary of State; thus, under the statute, also making a deemed application
for planning permission. The Secretary of State’s inspector held an inquiry in
September 1988 and submitted his report to the Secretary of State on 26
November 1988. At this time, the appellant, seemingly, had no ambitions to use
the site himself, and was for some years generally supportive of the respondent
and its business.
The Secretary of State’s inspector said at paras 71 and 72 of his
report:
71. Turning to the planning merits under ground (a) and the deemed
application, I do not find, from either the evidence or my site inspection, any
material objections on amenity, agricultural or traffic grounds to the
continued use for car parking of that area of Westlands Farm at present
occupied by the appellants [the respondent before us]. I consider therefore
that the decision must turn on whether there are, in this particular case,
circumstances which can justify a departure from the normal presumption against
development in the metropolitan green belt.
72. In my opinion there are 3 principal matters to take into
account. These are (1) the overall need for long term off-airport car parking,
(2) the future of the appellant company and (3) the circumstances of Westlands
Farm.
The inspector proceeded to consider the three matters in turn. It
is a fair summary to say that he was in no doubt as to the overall need for
long-term off-airport car parking; but, as he said at the end of para 74, he
did not ‘find the present situation to be critical’.
As to the position of the appellant company, were it to lose the
appeal before the Secretary of State and inspector, the inspector said, at para
76, that its immediate position would be ‘clearly critical’. I take one
sentence from that paragraph:
their scale is such that they are operating at the margin of
viability and the loss of the Westlands Farm site would, in the absence of any
alternative, be a serious blow which could well put them out of business…
As regards the third matter, the circumstances of Westlands Farm,
it is sufficient to cite the last sentence of para 77:
I consider that its potential is substantially reduced by the
combined constraints of green belt policy and aircraft noise.
At para 80 the inspector said:
In my opinion the all-round balance of advantage, bearing in mind
particularly the importance of the site to the future of a small business, lies
in allowing the area at present used for car parking to continue in that use,
subject to appropriate planning conditions.
The Secretary of State issued his decision letter on 22 March 1989.
He stated that he generally accepted the inspector’s conclusions. At the
closing section of para 8 the Secretary of State said:
the permission being granted in this case is being granted in the
light of the particular needs of your client company to maintain the viability
of their operation as providers of a particular parking service for which there
is a demand. In these exceptional circumstances it is considered that the
permission granted should be personal to your client company and – without
deciding the question whether their use is properly to be regarded as a parking
or a storage use – for the avoidance of doubt and to prevent a change to any
other sort of parking or storage use to which the same exceptional
considerations might not apply, it is also proposed to limit the use solely to
the purpose permitted.
Although the inspector had recommended the grant of permission, he
had not recommended the imposition of this personal occupancy condition.
Thereafter, on two occasions, in 1989 and 1996, the local planning
authority granted planning permissions to the respondent for the same use in
relation to small parcels of land adjacent to the original car park. It is
unnecessary to go into those. In October 1996 it was refused permission in
relation to another piece of land close to the site.
On 6 October 1997 the appellant applied to the local planning
authority, in his own name, to have the personal occupancy condition in the
respondent’s favour removed. That was refused on 6 January 1998, following the
planning officer’s recommendation, which was in these terms:
No reason is seen to set aside the condition imposed by the
Secretary of State in granting planning permission exceptionally for Gatwick
Parking Service Limited to occupy the site as part of their established
business.
On 11 March 1998, the same day as the respondent’s application to
the county court for a new tenancy, Autopark (Gatwick) Ltd was incorporated. It
will be recalled that that company is a vehicle through which the appellant
desires to run the car-park business. In April 1998 application was made by the
appellant to the local planning authority to have the personal occupancy
condition changed, so that it named his company, Autopark. That application was
granted by the local planning authority on 28 July 1998. So far as I can see,
the decision document gives no reasons.
The respondent, however, sought leave to move for judicial review
of that decision, and Harrison J gave leave on 6 October 1998. The planning
authority then conceded that the judicial review was good, without seemingly
giving notice to the appellant, and the decision was, in consequence, quashed
by Forbes J on 23 March 1998, without any reasoned adjudication by him. It
appears, however, that the concession by the local planning authority, leading
to the order of certiorari to quash the permission, was on the sole
ground that proper consideration had not been given to the question of whether
there were exceptional circumstances justifying the grant of the application,
given the green-belt location of the site.
Following the order to quash the permission, the applicant’s
application to have the personal occupancy condition transferred to Autopark
fell to be reconsidered by the planning authority. So it was that the council’s
planning officials looked into the matter.
One feature to be borne in mind is that, by this time, government
guidance concerning personal occupancy conditions had changed. The advice now
was that they should not be made or granted in respect of limited companies,
because their very purpose might be frustrated by a transfer of shares in the
company: see Circular 11/95.
The report prepared by the council’s planning officials, for
reconsideration of the applicant’s application in relation to the personal
occupancy condition, contains these passages:
Although the Secretary of State concluded that the viability of the
appellant company together with its dependence on this site justified granting
planning permission exceptionally in 1989, this conclusion was reached along
with his acknowledgement of the contribution the site made to the overall
provision of off-airport parking and the absence of any adverse environmental
impact.
PPG 1 [Departmental Planning Guidance Note] advises that the
planning system:
‘does not exist to protect private interests of one person against
the activities of another although private interests may coincide with the
public interest in some cases.’
It continues to advise:
‘the basic question is whether the proposal would unacceptably
affect amenities and the existing use of land and buildings which ought to be
protected in the public interest.’
The officials continued:
Financial or other loss experienced is not normally a planning
consideration and planning permission usually runs with the land rather than a
particular firm or company which may change over time. Circular 11/95 (para 94)
confirms that conditions should not act to protect local businesses against
fair competition and if a particular service is needed in an area there is no
planning reason why it should be provided by one firm rather than another.
Therefore, whilst the loss of this site for long term parking for
the current operators may prejudice their future business operation, the
planning system cannot interfere in competition between different firms for
sites.
In the light of deficiencies in the existing personal condition
the Council must consider whether, overall, there are exceptional circumstances
which now justify the variation of the condition, having regard to the
existence of a valid permission which, itself, cannot be set aside.
…
Considered in the light of current Government advice in PPG 1 and
Circular 11/95 a condition restricting the use of Westlands Farm to a single
operator is no longer justified or reasonable, notwithstanding the Council’s
previous decisions in this respect taken in January 1998.
…
In all these circumstances, it is considered that there is now no
overriding planning objection to the removal of the named company operator for
this site nor harm likely to be caused to the surroundings.
So it was that the officials recommended acceptance of the
applicant’s application. However, on 6 April 1999, the planning authority
dismissed the application in short form, merely stating:
Insufficient reason is seen to set aside the condition originally
imposed by the Secretary of State in granting planning permission exceptionally
for Gatwick Parking Service Ltd to use the site as part of their established
business.
The appellant appealed that decision to the Secretary of State, and
the hearing of the appeal was due to take place on 10/11 August 1999. The
appellant made fresh applications to the planning authority for the removal of
the respondent’s personal occupancy condition. The planning officer’s report on
those fresh applications is dated 6 July 1999, which was three weeks or so
after Judge Corrie had delivered his judgment in this case.
I set out the following passage from the planning officer’s
reasoning at that time:
Conclusions
The Secretary of State concluded, in 1989, that there were three
issues leading to the grant of planning permission, setting aside the strong
presumption against such development in the Green Belt — the overall need for
off-airport parking, the circumstances of Westlands Farm and the circumstances
of the appellant company (GPS).
In re-examining these issues it is evident that:
(i) The site will continue to make a significant and important
contribution to the overall provision of off-airport parking.
(ii) No adverse impact on the local environment or the Green Belt
will arise from the continued use of this site in a similar manner but by a
different operator. A greater degree of control over the use of the site will
be secured by an additional condition preventing the provision of any reception
facility within the site.
(iii) Considered in the light of current Government advice in
Circular 11/95 a condition restricting the use of Westlands Farm to a single
company operator is no longer justified or reasonable. The condition is of
limited effect in controlling the use of the site as the share capital of the
company could be bought by any other person(s)/company(ies) whilst not
affecting the implementation of the permission. In any event, the current
occupiers could continue to operate the site without the condition.
The Council has previously considered a similar application for
the removal of this condition, in January 1998, and permission was refused.
However, at that time the applicant offered no assurance as to how the site
could continue to be operated without harm to the surrounding area.
The applicant’s subsequent agreement to an additional condition
preventing the establishment of a reception centre within the site will ensure
that the use at Westlands Farm can continue to operate without detriment to the
character of the area or the amenities of residential properties in the
vicinity.
Of the exceptional circumstances identified by the Secretary of
State in 1989, the weight to be given to the particular circumstances of the
named company has been reduced by more recent Government guidance. The two
remaining circumstances, namely the need for airport parking on this site and
the circumstances of Westlands Farm, together with the additional condition
preventing a reception facility on the site, are considered to represent
sufficient exceptional circumstances to outweigh the harm caused, in principle,
and to justify the continuing operation of this otherwise inappropriate
development in the Green Belt.
It is considered that there is no overriding planning reason to
resist the removal of the named company operator for this site.
So the officials recommended that the appellant’s application be
granted, which it was on 27 July 1999. The local planning authority added no
reasons of their own, but it is an obvious inference that they accepted the
recommendations of the officials.
That, then, was the state of play in the case when I granted
permission to appeal on 19 August 1999. Unknown to me then, however, was the
fact that, on 9 August 1999, the respondent lodged an application for
permission to seek judicial review of the planning authority’s decision of 27
July. Form 86A in those proceedings is before us. Ognall J granted judicial
review permission on 2 November 1999. On 8 December 1999 Elias J declined to
order that the judicial review be expedited. An application to that effect had
been made by the respondent in order that the judicial review might be dealt
with before this appeal. On 18 January 2000 I refused the respondent’s
application to adjourn this appeal until after the judicial review had been
determined; so those judicial review proceedings remain outstanding.
I should refer briefly to the three grounds in the judicial review.
The first is to the effect that the planning authority ignored a material
factor, namely that if the appellant took over the site, there would be a
substantial increase in motor journeys in consequence. Second, it is said that
the planning authority were wrong to pay attention to the new policy, contained
in Circular 11/95, to the effect that the imposition of personal occupancy
conditions, in the case of a company, is inappropriate. Third, it is said that
the planning authority were wrong to proceed on the advice of counsel to the
effect that a certain undertaking given by the respondent, under section 106 of
the Town and Country Planning Act, did not bear on their consideration of the
personal occupancy condition. The thrust of this undertaking was to the effect
that the respondent would cease to engage in the permitted use if its shares
were sold out of the existing family ownership. I shall refer to the judicial
review proceedings again.
On the authorities, the question for the judge in the county court
was whether there was a real, not merely a fanciful, chance that the appellant
would obtain a planning permission whose effect would be that he would be
allowed to run the car-park business himself.
The learned judge decided the matter principally, if not entirely,
by reference to his view of the expert witnesses called on each side; Mr Kenny
for the appellant and Mr Loveday for the respondent. He was wholly
unimpressed with Mr Kenny for reasons he gave at pp17C-23C of the
transcript. He took the view that Mr Kenny had executed a series of volte-faces
in his evidence, and, more particularly, fell short of the standards of
objectivity and impartiality that the court was entitled to expect of an expert
witness. I shall take a short passage from p21 of the transcript:
I also observed this about his [Mr Kenny’s] evidence: he had taken
a lot of points, minor and major, good and bad, trivial and important, and when
asked why he had done this he said to Mr Warwick [counsel for the tenant]: ‘You
raise every point you can from the advocacy point of view’, and the impression
with which this left me was that he had fallen off the perch of objectivity,
which all expert witnesses should strive to attain and should always have done
so. It was neither in the spirit nor the letter of the notes to the new civil
procedure rules, 35.3, to which Mr Warwick referred me.
On the substance of the matter, the judge accepted the evidence of
Mr Loveday, the respondent’s expert. He summarised it in this way:
So far as Mr Loveday was concerned, his evidence was, in terms of
his report, short, not as laconic as the council but short. His view was, and
remains, that very special circumstances would be required to enable the
landlord to succeed: there are not any, and it will not succeed.
At that time, the appellant’s application to the local planning
authority was outstanding, and the judge was required to form a view as to
whether the appellant had a reasonable prospect (within the sense given to the
expression by the authorities to which I have referred) that the application
would be successful. Mr Kenny contested the need for exceptional circumstances.
The judge accepted Mr Loveday’s approach to the matter and, in consequence, Mr
Richard Drabble submits that there was no material before the judge, adduced by
the appellant, to demonstrate any exceptional circumstances of the kind that
were necessary.
The judge concluded the matter against the appellant in this way:
It seems to me, applying the test, that the only real basis of the
landlord’s case is the discredited evidence of Mr Kenny, which I have rejected,
along, of course, with Mr Radevsky’s skilful submissions, but really it boils
down to the rival experts, and it seems to me that the landlord simply has not
passed the test. He may subjectively have persuaded himself that he has an
excellent prospect of success but no-one looking at the circumstances overall
could fail to observe that, as I have already indicated, the landlord’s success
rate on his various applications for planning permission has been low. His
failure rate in fact has so far been 100% if one includes in that the
concession by the council when they submitted to the quashing of the July 1998
permission granted to the landlord. So looking at the prospects and the
circumstances, and the rationale upon which the landlord’s case is based, as I
have just set it out, I am not able to find that the test is satisfied.
The test referred to was the test established by the hearing for
the application of section 30(1)(g).
Although the learned judge then proceeded to address some of the
details in the closing written submissions that had been placed before him by
Mr Anthony Radevsky, for the appellant, he did not, in truth, embark upon a
distinct assessment of his own, as to the potential merits of the applicant’s
application for planning permission, in order to decide whether there was a
real chance that it would be granted. Having rejected Mr Kenny’s evidence and
accepted Mr Loveday’s in blanket form, he concluded that, in those
circumstances, there was nothing left in the landlord’s case.
In my judgment, it is significant that of the three matters relied
upon in 1988 and 1989 by the inspector and Secretary of State in granting the
respondent’s application, at that time, with a personal occupancy condition,
only that relating to the respondent company itself militated in favour of
refusing the appellant’s applications. It seems tolerably clear that the other
two factors, the need for long-term off-airport car parking and the
circumstances at Westlands Farm, were either constant or, perhaps, in the case
of the first, had acquired a greater importance than it may have possessed in
1999, the demand for car parking having risen over time. It is also not really
in contention that those two matters would be catered for as well if the
appellant were running the business as if the respondent continued to run it,
subject to all other things being equal.
So the future of the respondent company, the third matter before
the Secretary of State 11 years ago, is critical. It may be determinative of
the appellant’s prospects of fulfilling his aspiration to run the business
himself. The respondent had to assert that the permission sought by the
appellant ought to be refused by the local planning authority because they
should have regard to the protection of the respondent’s economic interest;
that having been treated as a special circumstance by the Secretary of State in
1989, it remains no less special or exceptional.
These observations foreshadow what the local planning authority
themselves thought about the case when considering the applicant’s application
for permission in July 1999. As I have said, Mr Drabble submits that there was
no evidence from the appellant showing exceptional circumstances to justify his
application that exceptional circumstances were necessary, as Mr Loveday had
told the judge. Mr Drabble submits, moreover, that the judge was quite right to
reject Mr Kenny, not only because he took a poor view of his presentation as an
expert witness, but also because he had the law wrong in relation to the need
or otherwise of exceptional circumstances. It is not necessary to go into the
details of that.
Mr Drabble
referred to three decisions in the Queen’s Bench Division, one by Mr
Lockhart-Mummery QC, sitting as deputy judge, in Allied London Property
Investment Ltd v Secretary of State for the Environment (1996) 72
P&CR 327; one by Keene J in R v London Docklands Development
Corporation, ex parte Frost (1996) 73 P&CR 199; and,
third, a decision of Sullivan J in Pye v Secretary of State for the
Environment, Transport and the Regions [1999] PLCR 281.
Looking at the
matter as at June 1999, when the learned judge had to deal with it, I am of the
view that he should not have so lightly set aside the views expressed by the
officials in April 1999, albeit that the local planning authority, in that
month, refused the appellant’s then application. For convenience, I repeat one
or two sentences from the officials’ reasoning:
Circular 11/95 (para 94) confirms that conditions should not act to
protect local businesses against fair competition and if a particular service
is needed in an area there is no planning reason why it should be provided by
one firm rather than another.
Therefore, whilst the loss of this site for long term parking for
the current operators may prejudice their future business operation, the
planning system cannot interfere in competition between different firms for
sites.
and:
In all these circumstances, it is considered that there is now no
overriding planning objection to the removal of the named company operator for
this site nor harm likely to be caused to the surroundings.
1 [1998] 3 PLR 72
That material was of very considerable weight in relation to the
question that the judge had to answer as to the appellant’s prospects in 1999,
at a time when the local planning authority were considering his fresh
application.
Mr Radevsky boldly submits that the judge should have acceded to
the appellant’s case on the evidence available in June 1999. Mr Drabble has
arguments of very considerable substance to support the judge’s rejection of Mr
Kenny’s evidence, but I do not think they accord sufficient weight to the shift
in emphasis to the three matters adverted to by the Secretary of State in 1989.
The reasoning of the officials in April 1999 comes close to the plain
conclusions that the officials reached before the July 1999 decision, namely to
the effect that those considerations, aside from the particular circumstances
of the respondent company, were themselves sufficiently exceptional to merit
the grant of planning permission.
On balance, in my view, the learned judge should have acceded to
the appellant’s case in June 1999, and was influenced, as it seems to me, by
his impressions, wholly adverse as they were, of Mr Kenny as a witness.
I am entirely clear that we are now entitled to take account of the
July 1999 planning permission: see Accountancy Personnel Ltd v Salters’
Co [1972] EGD 461. Obviously, that was not available to the judge in June
1999. The planning authority granted planning permission on the merits in July
1999, in the light of their officer’s recommendation, which I have set out. While
the judicial review of that decision is not yet determined, it
cannot be asserted by the respondent, on any basis, that its likely,
or possible, outcome will be that the only lawful course for the local planning
authority to take, on reconsideration, if the judicial review succeeds, will be
to refuse planning permission to the applicant.
In my judgment, we are entitled to look at the officials’ report as
readily as the decision itself. Mr Drabble objected to that course being taken,
but the officials’ report is plainly fresh evidence not available to the judge.
In my view, it is admissible here on ordinary principles. It is logically
relevant to the question of whether the appellant has demonstrated the
necessary intention for the purpose of section 30(1)(g); its weight is
another matter.
If there is, or may be, nothing to choose, by way of objective
planning merits, as between the appellant and the respondent, as operators of
the car-park business on this site, all that remains as an impediment to the
appellant is the respondent’s plea that its viability depends upon this
business, and a submission that in November 1989 the Secretary of State treated
that very circumstance as an exceptional consideration.
There is, at least, a real prospect that this consideration will
not avail to defeat the appellant’s application if the judicial review succeeds
and the application is reconsidered; it did not do so in July 1999, when the
planning permission was granted. On that occasion, the planning authority proceeded
on the view that, quite apart from any special considerations relating to the
respondent’s permission, there were otherwise freestanding sufficient
exceptional circumstances to justify planning permission for a car-park
business on the site.
It will be recalled that they said:
The two remaining circumstances, namely the need for airport
parking on this site and the circumstances of Westlands Farm, together with the
additional condition preventing a reception facility on the site, are
considered to represent sufficient exceptional circumstances to outweigh the
harm caused, in principle, and to justify the continuing operation of this
otherwise inappropriate development in the Green Belt.
It seems to me that the force of this conclusion is undiminished by
Mr Drabble’s argument, which will be deployed in the judicial review, to the
effect, for example, that the local planning authority have misunderstood the
effect of the respondent’s section 106 undertaking. That argument is set out
with perfect lucidity in paras 4, 5 and 6 of Mr Drabble’s supplementary
skeleton. I hope that I may be excused for not canvassing it in detail.
In my view, even if the judicial review succeeds on grounds such as
those there deployed, the planning officials’ conclusion, on the merits, that
the two factors, other than the special position of the respondent company,
constituted sufficient exceptional circumstances to justify the grant of
planning permission, would remain to be considered when the local planning
authority looked at the case again, as they would be obliged to do.
In para 15 of her statement for the local planning authority, which
has been filed in the judicial review proceedings, Miss Adrienne Greenwood, the
authority’s development control team leader said:
In my view, as explained in the Report to the Development Control
Sub-Committee on 27 July 1999, it is now possible to justify Gatwick-related
parking on the site on the basis of the first two of the very special
circumstances identified by the Secretary of State in his decision letter and
the third therefore becomes of marginal relevance. In these circumstances, it
is clear that the Secretary of State’s original personal condition should not
be used simply to create a monopoly position for one operator to the exclusion
of legitimate competition. Indeed, the third sentence of paragraph 94 of the
Secretary of State’s Circular 11/95 confirms this view.
Mr Drabble objected to our receiving Miss Greenwood’s statement,
but it is common ground that the planning permission of July 1999 is rightly
before us, and as Mr Drabble himself relies on the judicial review grounds in
support of his argument to the effect that the appellant has not proved his
case under section 30, it seems to me that it would be entirely unfair if we
were not to see what it is that the local planning authority have to say in
response to the respondent’s arguments in the judicial review, in so far as
what they have to say may be material to the section 30 question.
If the planning permission survives the judicial review, that is
the end of the case; the appellant will manifestly have proved his intention
under section 30. If it does not survive judicial review, it is plain to me
that, upon reconsideration, the planning authority will have to reconsider the
matters summarised in para 15 of Miss Greenwood’s statement and dealt with in
extenso by the officials. It may be there will be a fresh officials’
report, but they would have to consider the whole matter again, and would
certainly, at the very least, have to address the questions addressed by the
officials last time. I emphasise that the hurdle to be surmounted by the
appellant under section 30(1)(g), in the light of the authorities on the
subject, is by no means a high one. He does not have to demonstrate a balance
of probability that permission will be granted. He has to show that there is a
real, not merely a fanciful, chance. If the judicial review succeeds there
remains a real, not merely a fanciful, chance, that, in the end, the appellant
will obtain the permission he requires. That is enough to dispose of this case.
Mr Radevsky submitted that, in assessing the question of the
appellant’s intention for the purposes of section 30(1)(g), the position
has to be considered on the footing of the landlord, and not the tenant who is
in possession of the site: Westminster City Council v British
Waterways Board [1983] 2 EGLR 72 at p73M (CA); [1985] AC 676 at pp680E-F
and 682F (HL). For the reasons given in that case, that is, with respect,
ordinarily the right approach. It may be said, and Mr Drabble submits, that
where a tenant is relying on a personal occupancy condition to adopt this
approach, it may beg the very question in issue, namely whether the landlord
would succeed in getting that condition set aside. Even if that is right, I
would allow the appeal for the reasons given.
HALE LJ: I agree.
ALDOUS LJ: I agree.
Appeal allowed.
