Landlord and Tenant Act 1954 — Renewal of lease opposed on ground (f) of section 30(1) — Conditional conservation area consent — Whether landlord had intention to carry out demolition and reconstruction
dated June 29 1989 the appellant tenant held a term of premises at 41
Cranbourne Street, London WC2, which expired on March 25 1991 — The respondent
landlord gave the tenant notice pursuant to section 25 of the Landlord and
Tenant Act 1954 terminating the tenancy on the contractual term date and
stating that renewal of the lease would be opposed under section 30 (1) (f) of
the Act — On a preliminary issue, evidence was given for the landlord of its
redevelopment proposals including a conditional conservation area consent that
demolition was not to take place before a contract of redevelopment was made
and of its proposed programme of works by which demolition would precede the
letting of the redevelopment contract — Judge Harris QC held that the landlord
satisfied para (f) — On appeal it was submitted on behalf of the tenant that a
landlord’s intention under para (f) included: (1) a genuine intention to
demolish; (2) proof that there was a reasonable prospect of carrying out the
development on the termination of the tenancy; and (3) proof that he could
carry out that intention to demolish lawfully or at least there was a
reasonable prospect of doing so — In the present case the evidence before the
judge was that the landlord could not lawfully carry out its intention without
breach of the conservation area consent because under the proposed programme
the redevelopment contract was not to be let until after demolition of the
existing buildings
prospective illegality would prevent a landlord from establishing the requisite
intention to demolish and reconstruct — On the landlord’s proposed programme of
works a technical contravention of the conservation area consent would have
arisen — That matter could have been dealt with by negotiation or by altering
the programme of works and it was irrelevant that these points were not
mentioned in evidence — The judge had sufficient evidence to decide that there
was a genuine intention to demolish and there was a reasonable prospect of that
intention being carried into effect
The following
case is referred to in this report.
Gregson v Cyril Lord Ltd [1963] 1 WLR 41; [1962] 3 All ER 907;
[1962] EGD 298; [1962] 184 EG 789, CA
This was an
appeal by the appellant applicant, Palisade Investments Ltd, from a decision of
Judge Harris QC, who decided on a preliminary issue that the respondent, Collin
Estates Ltd, satisfied para (f) of section 30 (1) of the Landlord and
Tenant Act 1954 in relation to an application by the appellant for the renewal
of a lease.
Michael
Driscoll (instructed by Rabin Leacock Lipman) appeared for the appellant; and
Michael Roberts (instructed by Lass Salt Garvin) represented the respondent.
Giving
judgment, BALCOMBE LJ said: This is an appeal by a tenant from an order
of Judge Harris QC, dated June 27 1991, made in Westminster County Court
whereby on a hearing of a preliminary issue he dismissed the tenant’s
application for a new tenancy under the Landlord and Tenant Act 1954.
The lease, dated
June 29 1989, is of the ground floor and basement of 41 Cranbourne Street,
London WC2. That forms part of a larger group of premises owned by the
landlord. The contractual term of the lease expired on March 25 1991. On April
1 1990 the landlord gave notice to the tenant terminating the tenancy on March
25 1991 and indicated that he would oppose the grant of a new tenancy under
section 30(1)(f) of the 1954 Act, which, put briefly at this stage
indicates that he intended to demolish and reconstruct the premises. This last
point, namely whether the landlord could establish such an intention, was dealt
with as a preliminary issue. The judge found that the landlord had established
the necessary intention and dismissed the application.
The premises
are within a conservation area. The landlord had applied for conservation area
consent to demolish the premises. He also applied for planning permission to
erect a new building on the site. The local planning authority, Westminster
City Council, refused the application. The landlord thereupon appealed to the
Secretary of State for the Environment and the Secretary of State (as is the
custom) appointed an inspector to hear the appeal.
In the course
of a lengthy decision letter, the inspector said, under the heading ‘Other
matters’:
40 . . .
Conditions linking the conservation area consent to the planning permission and
contract for works of redevelopment of the site were suggested. Your clients
— the letter
being addressed to the landlord’s solicitors —
had no
objection in principle to those suggested conditions, but with some
reservations as to the precise wording.
41 . . . In
other respects I consider that the conditions suggested by the Council are in
principle both reasonable and necessary, but I shall where appropriate follow
the wordings of model conditions set out in government circulars rather than
those put forward by the Council.
Then under the
heading ‘Formal decision’:
43 . . .
Conservation Area consent:
1. the
works hereby authorised shall be begun not later than five years from the date
of this letter; and
2. the
demolition hereby authorised shall not be undertaken before a contract for the
carrying out of the works of redevelopment of the site has been made, providing
for the redevelopment for which planning permission is granted by the terms of
this letter.
Putting the
matter colloquially, the obvious purpose of that second condition was that
there should not be left a hole in the ground on the site.
The matter
came on for hearing before Judge Harris on June 27 and prior to the hearing
proofs had been submitted by the landlord’s expert witnesses, including that of
Mr John Badham, the landlord’s architect. I refer to his proof which was put in
evidence at the hearing. Under the heading ‘Current Situation’ he said:
I was
instructed to proceed with all the professional architectural work with a view
to commencing work on site in September 1991 for demolition and construction.
2.6 A copy of our outline pre-contract programme
is attached.
Further
reference is then made to the work in progress concerning plans etc and then:
2.9 Competitive tenders for the demolition
contract will be received on 20th May 1991.
2.10 The rebuilding contract will commence immediately
following completion of demolition in January 1992. Tender documents for the
rebuilding contract will be prepared during September 1991 and issued to
selected building contractors on 14th October 1991. Competitive tenders for the
rebuilding contract will be received on 18th November 1991.
Although it
may not be clear from the dates I have read, it is made clear from the progress
chart which was annexed to Mr Badham’s proof that the proposed programme did
not allow for even the contracts for the main development going out to tender
until after the demolition work had begun. So there was, in the proposed
programme, an immediately obvious and potential breach of the condition annexed
to the conservation area consent.
In the course
of his oral evidence, that matter was put to Mr Badham and in the brief note of
the evidence before us it is dealt with in this way. At the end of his
evidence-in-chief he said:
The lowest
tender (for demolition) has been accepted and a letter of intent has been sent.
Under cross-examination
there was reference to the letter of intent and he said:
Detailed
specification preparation. No bills or quantities yet but they are in
preparation . . . We have been renegotiating the planning situation with the
local authority.
In re-examination
the note records he said:
No
difficulties in renegotiating the condition. Never had any difficulties as to
this.
The point was
taken by counsel for the appellant tenant that the landlord had not proved the
necessary intention to demolish and reconstruct the premises at the termination
of the tenancy.
I refer to
section 30(1)(f) of the Act, which sets out the grounds of opposition by
the landlord:
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;
It was common
ground before the judge, as it has been before this court, that that intention
must be established as at the date of the hearing. Further, the date for
termination of the tenancy (the date given in the notice having gone by at the
date of the hearing) would be four months after the date of the hearing. I need
not refer in detail to section 64 of the 1954 Act which provides for the
extension of the term of the tenancy by a period of three months plus a period
for appeal, which would have brought the date for the termination of the
tenancy to the end of October 1991. Before turning to the judge’s judgment, I
deal with the law in the way in which Mr Driscoll, who appeared for the tenant,
made his submissions. I wish to say how clearly Mr Driscoll put his
submissions, although it will be apparent shortly that I do not accept them.
However, he put them extremely clearly and I deal with them with the
consideration they merit.
He submitted
that the landlord’s intention, as set out in the Act, includes three elements:
(1) a genuine intention to demolish; (2) the landlord must prove that there was
a reasonable prospect of carrying out the demolition on the termination of the
tenancy, and (3) the landlord had to prove that he could carry out that
intention to demolish lawfully or, at the very least, there was a reasonable
prospect of his doing so.
In my judgment
— although I will deal with this in more detail at a later stage in my judgment
— Mr Driscoll’s third element is not in fact a separate element at all. It is
merely an aspect of the second element and I will deal with that point in more
detail when considering the authority of Gregson v Cyril Lord Ltd
[1963] 1 WLR 41.
At this stage
I turn to consider section 74(1) of the Planning (Listed Buildings and
Conservation Areas) Act 1990, which provides:
A building in
a conservation area shall not be demolished without the consent of the
appropriate authority . . .
— then
subsection (3) incorporates a large number of other sections which —
. . . have
effect in relation to buildings in conservation areas as they have effect in
relation to listed buildings. . .
Mr Driscoll
carefully took the court through those various sections but I do not refer to
them all in detail. It is sufficient if I refer to section 9, which makes contravention
of a condition attached to a conservation area consent a criminal offence and
then section 17 (3) provides:
Listed
building consent for the demolition of a listed building may be granted subject
to a condition that the building shall not be demolished before
—
(a) a contract for the carrying out of works of
redevelopment of the site has been made;
Bearing in
mind what I have already said, that that section applies by reference to
conservation area consent, it is apparent that the particular condition
proposed here is one which the Act in fact provides for and, as I have said,
its purpose is to prevent a rather unpleasant hole in the ground being left on
the site.
Section 19 (1)
provides:
Any person
interested in a listed building with respect to which listed building consent
has been granted subject to conditions may apply to the local planning
authority for the variation or discharge of the conditions.
Again, by
subsection (3) is incorporated reference to sections 10 to 15.
Section 14 (1)
provides:
Where an
application for listed building consent is made to a local planning authority
which is a London borough council
— as in this
case —
(a) unless the authority have determined to
refuse it, they shall notify the Commission
— Historic
Buildings and Monuments Commission for England —
of the
application . . .
and there are
procedures which impose further delay if the commission wish to be heard on the
application for variation of the condition.
Mr Driscoll,
having taken the court in greater detail than I have found it necessary to do
in the course of this judgment, then submitted that the combined effects of
these provisions could be categorised under four headings:
(i) that it is a criminal offence of strict
liability to demolish a building in contravention of the condition attached to
a conservation area consent;
(ii) a specific condition was that no demolition
could be commenced without a contract for the building on the development site
having been made;
(iii) that the Act made provision for varying or
discharging that condition, but that was not a matter of renegotiation. It was
a matter for formal application to the local planning authority which, in turn,
must notify the commission and that involved time-limits because delays were
built into the procedure with a minimum further delay of 28 days;
(iv) one would suppose that if a developer wanted
to have discharged a particular condition for which specific statutory
provision had been made, then the developer would have to show good reason for
the discharge of that condition.
At this stage
it will be convenient to refer to Gregson v Cyril Lord Ltd [1963]
1 WLR 41, upon which Mr Driscoll relied. The facts of that case, which are
material when one considers the passages in the judgments, were that the
landlords of premises in Harley Street, London, opposed the new tenancy of a
suite of rooms occupied by osteopaths on the grounds specified in section
30(1)(g) of the 1954 Act which, putting it shortly, meant that they
wanted to occupy for their own purposes. The headnote continues:
It was clear
that they wished to occupy the rooms as offices (which was the use to which
they had put most of the rest of the building), but they had not applied for
planning permission and there was a conflict of evidence as to the likelihood
of their being able to accomplish their evident wish, either by getting any
necessary planning consents or by obtaining effective possession for, at any
rate, sufficient time to satisfy paragraph (g) before any enforcement
procedure was put into force against them. The county court judge declined to
decide whether planning permission was required and, if so, whether they would
obtain it: —
Held, that,
although the judge had rightly declined to decide whether planning permission
was required and, if so, whether it would be obtained, the onus of proving an
intention to occupy for the purpose specified was on the landlords, and they
had to establish a reasonable prospect of being able to
the test to be applied was an objective one, namely, would a reasonable man, on
the evidence before him, believe that there was a reasonable prospect that he
would be successful in obtaining any necessary planning permission, or,
alternatively, that there was a reasonable probability that an effective
enforcement notice would not be served against him?
It is in that
context that the passages from the judgments must be considered. The first
passage to which I refer is that of Lord Denning MR at p 44:
I think the
judge was in error in declining, as he did, to consider these planning
questions. It seems to me that, in order that a landlord should establish his
‘intention’ to the satisfaction of the court, he must show, not only that it is
his wish or desire to occupy the premises for his own business, but that it is
a practicable proposition which he has a reasonable prospect of bringing about
by his own act of volition, without any real risk of it being thwarted by
anyone else, and that it is his fixed and settled determination to bring it
about. Asquith LJ put it well in Cunliffe v Goodman [[1950] 2 KB
237] when he said: ‘If there is a sufficiently formidable succession of fences
to be surmounted before the result at which X aims can be achieved, it may well
be unmeaning to say that X ‘intended’ that result’.
One of the
formidable fences which a landlord may have to surmount is the necessity of
getting planning permission: and I do not think that he can get round it by
saying that he intends to occupy the premises for his own business as soon as
he can, whatever the planning authority think about it, without getting
permission at all. Take the case which I put in the course of argument: suppose
the premises are used by the tenant as offices and the landlord desires to use
them as a shop. It is clearly necessary for the landlord to get planning
permission and it is most unlikely that it will be granted. Nevertheless he
determines to go ahead. He is determined to go into occupation and use the
premises as a shop: and he will not abandon the use until the planning
authority force him to do so. Does proof of such an intention on his part
satisfy the requirements of section 30(1)(g)? Clearly not. His intention is to do an
unlawful act: see Attorney-General v Smith [[1958] 2 QB 173]: and
the court will not lend its aid to him so as to enable him to break the
planning law.
Mr Driscoll
places great weight on that last sentence. Lord Denning continued:
If such be
the case when his intention is to do something which is clearly unlawful, what
is the position when it is a vexed question and open to doubt? The landlord is not obliged under planning
law, so it is said, to get permission beforehand. He can wait until an
enforcement notice is served on him and then say that permission was
unnecessary, or if it was necessary, that it ought to be granted
retrospectively, see section 33 of the Caravan Sites and Control of Development
Act, 1960. No one can say, therefore, in advance, whether his intention is to
do something unlawful or not. In such a situation, so far as a new tenancy is
concerned, I think it depends on how formidable is the fence which the landlord
has to surmount. If he can show that it is one which he has a reasonable
prospect of surmounting, so that he can take it easily in his stride, all well
and good. He has the requisite intention to satisfy the section. But if it is
one which may quite well bring him down, then he fails for the simple reason
that he has not established his intention to the satisfaction of the court, as
section 31 (1) requires.
It seems to me
that in that later passage Lord Denning is qualifying what he said earlier. In
any event, the majority of the court, comprising Upjohn and Diplock LJJ, gave a
somewhat different emphasis. The following is a passage from the judgment of
Upjohn LJ (read by Diplock LJ) at p 48:
The test to
my mind is entirely different. It is an objective test upon the evidence before
the court: have the landlords established, not what the planning authority or
the Minister would determine, but the different and practical question: would
the reasonable man think he had a reasonable prospect of giving effect to his
intention to occupy? On the facts of
this case, and subject to one further point mentioned below, this amounts to an
inquiry whether the landlords on the evidence have established a reasonable
prospect either that planning permission is not required or, if it is, that
they would obtain it.
I turn to p
50, where there is a long passage dealing with the question of illegality:
It was
submitted that if planning permission is necessary the court would not presume
an intention to occupy the premises for their own purposes within section 30(1)(g)
because such occupation would be unlawful, and we were referred to Attorney-General
v Smith. But in that case Lord Goddard CJ was dealing with a case where
there was a flagrant and persistent flouting of the provisions of the Town and
Country Planning Act, 1947. The ground of Lord Goddard CJ’s decision was this:
‘The Town and Country Planning Act, 1947, is an Act which is designed to confer
a benefit on the public: it is for the orderly development of the countryside,
to prevent unsightly development, to prevent the development of too crowded
areas, to prevent the development of industrial buildings and plant in what
should be a residential district, and for the mapping out of residential
districts and industrial districts and so forth. It is obviously an Act which
is designed for the public good and can be used for great public advantage.
Therefore, if a defendant shows by his conduct that he intends to avoid the Act
and act in breach of it so far as he can and for as long as he can, then the
Attorney-General is entitled to an injunction such as was granted in the cases
which have been cited to me.’
In my
judgment that case was clearly correctly decided on its facts. On the
assumption that on the facts of this case planning permission is required, if
the landlords do enter into occupation of the premises without such permission
there may be a technical contravention of section 12 of the Town and Country
Planning Act and, therefore, technically, as Lord Goddard CJ thought, an
unlawful development. I do not think it necessary to express a concluded
opinion upon that question, but having regard to the provisions in the Acts of
1947 and 1960, which I have very briefly reviewed, which may retrospectively
cure any failure to obtain development permission, I for my part do not think
that the technical failure to obtain permission before the development should
compel the court to refuse to recognise the probability, if the facts warrant
that view, that possession with such development will remain permanently undisturbed,
and that a sufficient intention for the purposes of section 30(1)(g) is
established.
In my
judgment, there is no absolute rule that any prospective illegality would
prevent a landlord from establishing the requisite intention to demolish and
reconstruct or — as the case may be under subpara (g) — occupy the
premises for his own purpose.
Possible
illegality is relevant only so far as it goes to show that the landlord has no
reasonable prospect of carrying out his intention, be it to demolish or reconstruct
or occupy, as the case may be. However, it is not necessary to go that far on
the facts of this case, because in this case all that was established was that,
on the landlord’s proposed programme, if carried out in the way it had then
been set out, that would have involved a technical contravention of the
conservation area consent.
There was
evidence before the judge, which he accepted, that the landlord was a
subsidiary of a large public company and there were ample funds to carry out
the proposed reconstruction. It appears probable (and I put it no higher) that
when Mr Badham, the architect, drew up the proposed programme, he had
overlooked the conditions attached to the conservation area consent, namely
that the building contract had to precede any work of demolition. That point
was properly drawn to his attention in the course of cross-examination. It is
perhaps unfortunate that in re-examination he was not asked the specific
question whether the proposed programme could be changed. Clearly, of course,
it could.
I now turn to
the judgment of Judge Harris QC and I refer to the passage at p 17 where,
having dealt with the question of genuineness and the necessary funds, he said:
The question
of the planning consent presented some difficulties because the planning
authority, namely Westminster City Council, it seems initially refused planning
permission as is their wont and an appeal had to be made to the Secretary of
State and the planning inspector gave his decision on May 19 1990, where he
gave reasons for, and in the exercise of the powers which he was given, he
allowed those appeals and granted consent with the normal five years’ clause:
and also that the demolition which was authorised was not to be undertaken
before the contract for the carrying out of the works of redevelopment of the
site had been made. And that is a point which is being relied on heavily by the
tenants, that they cannot endeavour to commence this development by demolishing
the site until there has been a contract. That seems to be somewhat contrary to
the programme which has been provisionally laid down by the respondents, but I
am satisfied there will be no difficulty in getting the planning authority’s
consent to deal with that in a practical and sensible way.
Accordingly,
it seems to me from that decision of the inspector, together with a
clarification of the planning permission contained in a letter dated January 10
1991, which dealt with a reduced height scheme of this scheme, no further
planning applications for planning permission or conservation area consent were
to be required. Accordingly, on the evidence I am satisfied that the
respondents have got planning permission and that it would be possible for them
in accordance with their programme to commence demolition and enter into
contracts for the reconstruction and redevelopment of this building.
The evidence
called on behalf of the respondents, Mr Gittens and Mr Badham, the architect,
show quite clearly in my judgment that the respondents have gone to great
trouble and have laid out a scheme and prepared plans which show clearly that
they must have such an intention. Nobody, if this was some bogus scheme, would
have gone to all that trouble and the scheme has reached a state that tenders
have been sent out and have been returned and the most favourable tender has
been provisionally accepted by a letter of intent. Accordingly, it seems to me,
that as long as the planning situation is resolved and a contract is obtained
for the reconstruction of this site the matter will be able to go ahead quite
quickly and one sees from the proof of evidence from Mr Badham the work that
has been done, the consultations that have taken place and the plans which are
before the court show exactly what they propose to do.
fide plan to demolish or reconstruct these premises and having been put to
proof of that intention by the applicants they have discharged the necessary
burden.
Mr Driscoll
criticises the judgment in this way: he says that the only evidence before the
judge was that the landlords, through their architect Mr Badham, would
renegotiate the conditions or rather the particular condition attached to the
conservation area consent. That, it is submitted, ignores the necessity for the
formal application which has to be made under section 19 of the 1990 Act. The
judge did not mention any such necessity, perhaps not surprisingly, since it
was not a point taken before him.
For my part I
come back to what I believe is the real issue in this case. In my judgment, the
judge was rightly satisfied, on the evidence before him, that there was a
genuine intention to demolish. He was also satisfied — and again rightly so —
that there was a reasonable prospect of that intention being carried into
effect. One possible hitch had been exposed: the landlord’s proposed programme
involved a breach of the conservation area consent. There were several ways in
which that matter could be dealt with; either by a renegotiation of the condition,
with all that those words imply, including the necessity of making a formal
application, or by altering the programme itself. The judge was entitled to
infer that that was a possible course. The fact that it was not expressly
mentioned in the course of evidence is, in my judgment, irrelevant. The judge
had before him, as he said, a responsible landlord and an architect, a
professional man, against whom nothing was suggested and the judge was assured
by him that the point would be met and not ignored.
Finally, if
the point had been put to the judge in the same way as it has been put to us,
he might have taken the view, in accordance with the judgments of Upjohn and
Diplock LJJ in the Gregson case to which I have referred, that, although
it was a possibility that a technical offence might be committed, that did not
affect the reasonable prospect of the landlord’s carrying out the work of
demolition.
In that
context it is right to say that this Act was intended to be construed sensibly,
so as to hold a fair balance between landlord and tenant. It is not, in my
judgment, to be construed so as to create a series of artificial hoops through
which the landlord must jump before he must satisfy the necessary intention.
In the course
of argument the court itself raised the possibility of section 31 (2) of the
1954 Act being material. This was not pursued in argument and therefore I say
no more about it, except to say that the point was not overlooked.
In my
judgment, the judge came to the right decision for the right reasons. I would
dismiss this appeal.
Agreeing, BELDAM
LJ said: The question raised by the appellant in this appeal is whether, on
the evidence given by the respondent’s witnesses, Judge Harris, the trial
judge, could find that the respondent had proved, on the balance of
probability, that on the termination of the appellant’s tenancy it intended to
demolish the premises comprised in the appellant’s holding.
For the
purposes of this case, the termination of the appellant’s tenancy would be a
period of three months following the final disposal of the appellant’s
application.
To find that
the respondent had the necessary intention, the judge had to be satisfied,
first of all, that the respondent had decided, so far as it lay in its power,
to demolish the premises and, second, that there was a reasonable prospect that
it would be able to do so. It was not in question before the judge that the
respondent, a substantial and well-known property development company, had, for
some years, been preparing to redevelop this site on which the appellant’s
premises stood; nor that it had obtained planning consent to demolish the
building, which was in a conservation area subject to the condition that no
demolition should actually take place before a contract for the reconstruction
work had been signed.
What is
contended is that, because the respondent produced in evidence a programme of
work which showed that the work of demolition was due to commence before
tenders for the work of reconstruction had actually been sent out, the
respondent’s intention was to carry out work in breach of the condition and
therefore unlawfully. Second, it was argued that because Mr Badham, the
respondent’s architect, explained that he was renegotiating planning matters
with the planning authority, including the condition, having regard to
statutory requirements the respondent would have to reapply to the planning
authority for conservation area consent, that the reapplication might have to
be referred to the commission and, therefore, the judge ought to have held that
the respondent would be in such difficulty in renegotiating the condition that
it could not have complied with the requirement to carry out the demolition
within the period of three months from the final disposal of the appellant’s application.
It is said
that if the judge had been referred to the relevant requirements of the
Planning (Listed Buildings and Conservation Areas) Act 1990, it would have
appeared to him that the respondent would not in fact have been able (within
the period) to make the necessary applications and commence work of demolition.
I, too, would
reject these arguments, attractively though they were developed by Mr Driscoll.
The evidence before the judge amply justified him in concluding that the
respondent intended to demolish the premises. In my view, it would not have
been a reasonable inference from the fact that it was discussing a variation of
the condition with the local planning authority that it intended to break the
law by infringing it. On the contrary, it seems to me that the judge would have
been wrong to draw any such inference. The very fact that it was discussing it
shows it had it in mind, at that time, and that it was seeking to carry out
this development in accordance with the planning consent which it had obtained
but with the condition that it should have in place a contract for
reconstruction work varied.
We were
referred to Gregson v Cyril Lord Ltd and to the judgment of Lord
Denning MR in that case. For my part, I would refer to passages in the judgment
of Upjohn LJ, with which Diplock LJ agreed, which make it clear that the
question of the respondent’s intention has to be decided on a practical and
commonsense basis. At p 45 Upjohn LJ said:
The question
whether the landlords intend to occupy the premises is primarily one of fact,
but the authorities establish that to prove such intention, the landlords must
prove two things. First, a genuine bona fide intention on the part of
the landlords that they intend to occupy the premises for their own purposes.
So far as this head is concerned, it is not in dispute that the landlords are
genuinely intending to occupy the premises for their own purposes. The
landlords already occupy 70 per cent to 80 per cent of the whole building and
obviously, on the evidence, genuinely require to occupy this extra half floor
to house some of their senior executives and their staff. Secondly, the
landlords must prove that in point of possibility they have a reasonable
prospect of being able to bring about this occupation by their own act of
volition.
In the present
case it is the intention to demolish with a reasonable prospect of being able
to bring about the demolition of the building by their own act of volition.
Then at p 47
the judgment continued:
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.
Then, finally,
concerning the objective test:
It is an
objective test upon the evidence before the court; have the landlords
established, not what the planning authority or the Minister would determine,
but the different and practical question: would a reasonable man think that he
had a reasonable prospect of giving effect to his intention to occupy?
In that
passage it is made clear that the question whether there was a reasonable
prospect that the respondent would be able to bring about the demolition of the
premises is one of fact to be decided on the evidence given to the court.
Balcombe LJ has already adverted to the evidence which was before Judge Harris.
It is clear from that evidence that the respondent had the ability to bring
about the demolition of this building.
To what extent
was that ability compromised by the fact that it put in evidence the programme,
which was prepared some months before the hearing? I would say not at all; if it became clear to
the respondent that no relaxation of the condition concerning the rebuilding
contract was likely to be allowed, either by the commission or by the local
planning authority, and that it therefore could not commence the work within
the required period, it would have been a comparatively simple matter to
accelerate the obtaining of tenders and to enter into a contract.
Mr Driscoll
argued that the judge did not consider this and that he had to be satisfied at
the time of the hearing that the respondent had that ability. The reason the
judge did not consider it was because the
directed to the planning requirements, he would have given the answer (which
seems to me on the evidence was obvious) that if it became apparent that no
relaxation would be possible, then obviously the contractual arrangements would
be put in place before work of demolition was commenced.
In my judgment,
it did not invalidate the judge’s finding to say that he did not have in mind
these requirements. For the reasons I have given, I consider there was ample
evidence on which the judge could conclude that the respondent had satisfied
the requirements of section 30(1)(f) of the Act and for those reasons I
would dismiss the appeal.
Appeal
dismissed with costs. Leave to appeal to the House of Lords refused.
