Tenant applying for change of planning use of premises to A3 use – Council as planning authority granting planning permission – Council as landlord refusing tenant’s application for change of use – Tenant seeking declaration that consent unreasonably withheld – Application dismissed
The defendant council were the freeholders of a substantial area in Plymouth which included 19 Union Street, (the premises). The council let the premises by a lease dated December 31 1964 which was subsequently assigned to the plaintiff tenant. The tenant held the premises in the terms of the original lease, which included a covenant not to use the premises other than as commercial garage showrooms unless prior consent, which was not to be unreasonably withheld, was obtained. In August 1996 the tenant applied to the council in their capacity as the relevant planning authority for consent to change the use of the premises to A3 use as a public house. The council forwarded the application to a subcommittee which on October 4 1996 consented to a change of user to A3 use of the forecourt part of the premises only. The consent was given subject to the restriction that any licence for the sale of alcohol was to be a table licence only, effectively excluding use as a public house. It was common ground that consent for change of user had not been requested by the tenant.
In November 1996 the council’s planning committee gave consent to A3 use of the premises. In May 1997 the tenant made a formal application to the council as landlords for consent to the change of user to A3 use. However, at a joint meeting of the employment and economic development and planning committees, the decision of the subcommittee in relation to change of user was affirmed. The reasons given by the council as landlords were that they were concerned to protect retail and business tenants within the city centre, particularly those tenants near the premises, and that they believed if consent were granted it would undermine the economic fabric of the area. The council further maintained that they were concerned to prevent an extension of Plymouth’s clubland into the retail centre since they were worried that this would result in further anti-social behaviour against the retail, residential and commercial property which they owned. The tenant sought a declaration that the council as landlords had acted unreasonably in refusing consent to the change of user because they had refused consent on grounds of planning considerations which were not relevant to the relationship of the parties as landlord and tenant, and which achieved a collateral purpose unconnected with their relationship of landlord and tenant.
Held The tenant’s application was dismissed.
The court was bound to accept the unchallenged affidavit evidence setting out the council’s reasons, and therefore it was unable to look between the lines of that evidence to see whether the council had been acting as landlords or as planning authority. Since the reasons for the council’s decision in relation to change of user were plainly capable of being a landlord’s reasons, which related to the council’s property interests as landlord, the tenant had failed to discharge the onus of showing that the council had acted unreasonably.
Anthony Tanney (instructed by Taylor Walton, of Luton) appeared for the plaintiff; Adrienne Morgan (instructed by the solicitor to Plymouth City Council) appeared for the defendant.
