Landlord and Tenant Act 1954, Part II, section 30(1)(g) — Section 29 of Town and Country Planning Act 1971 — British Waterways Board as landlords opposed an application by Westminster City Council as tenants for a new tenancy under the 1954 Act, the premises being used by the council as a cleansing depot — Board claimed that it intended to occupy the premises for the purposes of a business, namely for access to the Paddington Basin, where it intended to install moorings — Appeal from decision of Walton J — To succeed under section 30(1)(g) of the 1954 Act board had to show a bona fide intention to occupy the premises for the above purposes (which was clearly established) and that it had a reasonable prospect of bringing about that occupation by its own act of volition — The latter condition turned on the likelihood of planning permission being obtained — Council’s dual capacity as tenants and as planning authority — It was clear that the council would refuse planning permission as the depot was regarded as vital to its cleansing services — Would Secretary of State be likely to uphold such refusal on appeal? — Walton J thought yes — Court of Appeal thought otherwise — They held that the Secretary of State would probably grant permission and that, if he did not, his decision would probably be reversed on judicial review — The planning authority would not be allowed to invoke its powers to protect its own occupation as tenant, an object ulterior to planning control — Nemo debet esse judex in propria causa — Appeal by board allowed
This was an
appeal by British Waterways Board against a decision of Walton J on December 21
1982 that the board had no grounds under section 30(1)(g) of the Landlord and
Tenant Act 1954 to oppose grant of a new tenancy of 33, 35 and 37 North Wharf
Road, Paddington, to the Westminster City Council.
Kenneth
Bagnall QC and Kirk Reynolds (instructed by J M McKean, solicitor to British
Waterways Board) appeared on behalf of the appellant board; Barry Green QC and
C J Lockhart-Mummery (instructed by T F Neville, solicitor to Westminster City
Council) represented the respondent council.
Giving
judgment, DUNN LJ said: This is an appeal from an order of Walton J dated
December 21 1982 whereby he held on a preliminary issue that British Waterways
Board (‘the board’) had no grounds under section 30(1)(g) of the Landlord and
Tenant Act 1954 to oppose the granting of a new tenancy of 33, 35 and 37 North
Wharf Road, Paddington, to the Westminster City Council (‘the corporation’).
The premises were let by the board to the corporation by a lease dated March 22
1966 for a term of 16 1/4 years from March 25 1965 for purposes in connection
with the functions of a local government authority. The premises adjoin the
Paddington Basin which belongs to the board. On December 22 1980 the
corporation served a notice under section 26 of the Act requesting a new
tenancy. On February 20 1981 the board served a counternotice of opposition to
the grant of a new tenancy on the ground inter alia that on the
termination of the current tenancy it intended to occupy the premises for the
purposes of a business to be carried on by it thereon. The judge found as a
fact that if it attained possession of the premises, the board genuinely
intended to carry on a business there. But he went on to hold that planning
permission would be required for the proposed business, that an application for
planning permission would be refused by the corporation (which is itself the
relevant planning authority), and that a reasonable man in the position of the
board would recognise that such refusal would be upheld on appeal by the
Secretary of State. Such being the situation, the judge held in accordance with
authority that the board had not established the necessary intention to carry
on a business at the premises.
It was not
disputed by the board in this court that planning permission would be required
for the proposed business, or that the corporation would refuse the requisite
planning permission, and that if the board went into occupation without
planning permission the corporation would proceed by way of enforcement notice.
The main ground of appeal was that the judge was wrong in holding that a
reasonable man in the position of the board would recognise that the Secretary
of State on appeal would uphold the refusal of the planning permission. Indeed
it was submitted that the only ground on which it was suggested that planning
permission could be refused was unlawful.
This point,
though raised before the judge, formed a very subsidiary part of the case
below, where the principal issue was whether planning permission was required
at all. It was common ground that, as so often happens, the case took on a very
different complexion in this court from that in the court below. The board’s
proposal for use of the premises was summarised by the judge in the following
terms:
Basically,
what they have in mind is that if possession of this site can be obtained, it
will then be possible for them to obtain access to the Paddington Basin, which,
as already noted, adjoins the premises where they intend to install moorings.
The premises will then be devoted to a mix of uses which, in the intentions of
the board, will all be basically subservient to the provision of these
moorings.
The judge then
referred to the affidavit of Mr Mattick, the board’s development surveyor, in
which he stated that the existing buildings on the site would be used as
stores, workshops, offices and living accommodation. The judge continued:
I think, as
Mr Reynolds for the board submitted, that if once the board did indeed obtain
possession of the premises, there would appear to be no logical ground
whatsoever for thinking that (possibly subject to what I might describe as
‘marginal negotiation’ with the planning authorities) the board would not be
able in the long run to carry out this eminently sensible project, in line with
many other similar developments by the board, thus providing much needed
recreational facilities for the inhabitants of the City of Westminster.
At present the
premises, together with an adjoining site also rented by the corporation, are
being used by them as a depot. The affidavit of Mr Geake, the area planning
officer of the corporation, sets out the existing use in para 5 as follows:
The existing
use of the depot is as a local government depot. The description ‘local
government depot’ is merely intended as a convenient brief description of the
existing use which could be expanded as follows to describe the existing use:
‘A mixed and fluctuating use of the land and buildings on the premises as
workshops, offices, stores, messing facilities, parking for cars and parking
storage both in the open air and under cover for cleansing vehicles, emergency
snowfall vehicles, and street barrows all for purposes in connection with the
functions of a local government authority.’
At the moment the said purposes are principally those of the city
cleansing department and to a lesser extent those of the city engineer’s
department. But I submit that the plaintiffs may use the premises for any of
their departments provided the existing use is not materially changed. In
planning terms, the identity of the occupier who carries on such use is
irrelevant. Accordingly the expression ‘local government depot’ is not intended
to imply that there is any relevance in the fact that the occupier is a local
authority. It is the activities which it carries on at the depot which are
relevant and it is merely a matter of convenience and brevity that these can be
described as ‘use as a local government depot’.
The judge held
that the Secretary of State would be likely to give higher priority to street
cleansing than to recreation, and that as there was no evidence that there was
any other suitable site available to the corporation as a cleansing centre, a
reasonable man would recognise that the Secretary of State would uphold the
refusal of planning permission.
The judge’s
reference to a reasonable man arises in this way. In Cunliffe v Goodman
[1950] 2 KB 237 Asquith LJ said:
‘An
intention’ to my mind connotes a state of affairs which the party ‘intending’ —
I will call him X — does more than merely contemplate; it connotes a state of
affairs which, on the contrary, he decides, so far as in him lies, to bring
about, and which, in point of possibility, he has a reasonable prospect of
being able to bring about by his own act of volition.
This
definition of ‘intention’ was approved for the purposes of section 30 by the
House of Lords in Betty’s Cafes Ltd v Phillips Furnishing Stores Ltd
[1959] AC 20. In Gregson v Cyril Lord Ltd [1963] 1 WLR 41 the
question arose how a landlord was to establish the necessary intention where
the proposed occupation for business required, or might require, planning
permission. It was held by a majority (Upjohn and Diplock LJJ) that two matters
fell to be proved: firstly a genuine intention on the part of the landlord that
he intended to occupy the premises for his own purposes. That bona fide
intention was so found by the judge in this case and is not the subject of a
cross-appeal. Secondly the landlord must prove that in point of possibility he
has a reasonable prospect of being able to bring about this occupation by his
own act of volition. As to this second question Upjohn LJ said at p 47:
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.
At p 48 Upjohn
LJ continued:
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 questions: 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. This does
not necessitate the determination by the court of any of the questions which
may one day be submitted to the planning authority or to the minister; it is
the practical appraisal upon the evidence before the court as to whether the landlords,
upon whom, let me stress, the onus lies, have established a reasonable prospect
of success. In many cases, no doubt, proof of this may be so doubtful that the
wise landlord will buttress his case by previously testing the matter in the
sense that he will have obtained a decision of the minister whether planning
permission is necessary, and if that decision is against him, he will have then
applied for and obtained planning permission and so put an end to the question.
For my part, however, I reject the argument of counsel for the tenants that
this is the necessary and proper course in all cases. Each case must depend on
its own facts and a landlord is perfectly entitled to come before the court and
endeavour to establish by his own evidence that on the balance of probabilities
planning permission is not necessary or that if it is, he will probably obtain
it.
In this case
the board could have applied under section 53 of the Town and Country Planning
Act 1971 for the determination whether planning permission was required, and if
it had been held that it was then they could have made an application. But the
board has chosen not to follow this course, and so the judge rightly applied
the test laid down in Gregson v Cyril Lord Ltd. Although Mr Green
for the corporation submitted that that case was decided on its own facts, it
is, in my view, of general application and provides the relevant test in cases
such as this. As the judge said, it is an extremely difficult test to apply
because, as was pointed out by Upjohn LJ, it is quite impossible for the court
to decide what the minister would decide, for the court has not before it the
materials such as reports of inspectors, or knowledge of local background, or
local and national policies, which would be available to the minister in
arriving at what is essentially a policy decision. So the court must put
itself, as the judge did, in the position of a reasonable landlord considering
on the facts known to him the chance of obtaining planning permission.
The first question
which arose in this court was as to the date for the determination of the
chance. Is the landlord to assume that the tenant is still in possession or is
he to assume that he has obtained possession and then applied for planning
permission? The words of section
30(1)(g) are directed to the future, ie to the situation on the termination of
the existing tenancy. Although Betty’s Cafes Ltd v Phillips
Furnishing Stores Ltd held that the landlord must prove his intention at
the date of the hearing, the definition of ‘intention’ to which I have referred
includes a consideration of the future, ie whether the landlord has a
reasonable prospect of being able to bring about his intention by his own
vohtion, and indicates that the landlord should look to the situation after the
termination of the lease and when he is himself in occupation. This view is
supported by Gregson v Cyril Lord Ltd, where the Court of Appeal
went on to consider the hypothetical situation in which the landlord had gone
into possession without planning permission and whether it was likely that an
enforcement notice would be served upon him. This is only consistent with the
view that the Court of Appeal in Gregson v Cyril Lord Ltd assumed
that a reasonable landlord would consider his chance of obtaining planning
permission on the
premises.
On that
assumption in this case, the corporation would no longer be using the premises
as a cleansing depot, but the existing planning use would remain. The question
then arises, is the preservation of that use a material consideration within
the meaning of section 29 of the Town and Country Planning Act 1971? If it is, then the minister is entitled to
take it into account; if it is not, then he is bound to disregard it. Clyde
& Co v Secretary of State for the Environment [1977] 1 WLR 926,
and Granada Theatres Ltd v Secretary of State for the Environment
(1981) 257 ESTATES GAZETTE 1154, show that the preservation of an existing use
may be a material factor in the refusal of planning permission for a change of
use. But in Pyx Granite Co Ltd v Ministry of Housing and Local
Government [1958] 1 QB 554, Lord Denning said, at p 572:
The planning
authority are not at liberty to use their powers for an ulterior object however
desirable that object may seem to them to be in the public interest.
That statement
was approved by the House of Lords in Chertsey UDC v Mixnam’s
Properties Ltd [1965] AC 735 and Newbury DC v Secretary of State
for the Environment [1981] AC 578.
The appellants
submit that the existing use in this case is as a depot, not as a local
authority depot, and that if the Secretary of State refused planning permission
as the judge suggested he would, on the sole ground that there was no
alternative site available for the corporation to use as a cleansing depot,
then that refusal would not be a preservation of the existing use, but a
preservation of the occupation of the corporation. That would amount to the use
of planning powers with an ulterior object, namely to protect the occupation of
the corporation, and would be unlawful.
There being no
planning permission relevant to the existing use, the submission was based
primarily on the evidence of Mr Geake in para 5 of the affidavit to which I
have referred and in para 19 of his affidavit, which is in the following terms:
If an
application for planning permission were submitted to the council as local
planning authority, I consider it highly unlikely that the council would grant
permission for the proposed development. The main reason is that such
development would entail the loss of a vital depot, essential to the council’s
cleansing services, and for which no suitable alternative site exists. If I
were responsible for dealing with such an application I would recommend the
committee to refuse it, on at least this ground. Until one saw an application,
one cannot speculate as to whether there might be some additional grounds of
refusal.
Mr Geake was
cross-examined on his affidavit and gave the following relevant answers:
(Q) Well Mr Geake let us be sure that we
understand each other. You agree that there is no matter (sic) in the fact that
the occupier of this site is a local authority?
(A) No. (Q) We agree that that is irrelevant in terms of defining
use? (A) Yes, the occupier is
irrelevant. (Q) And am I also right in saying that it is irrelevant that it is
used as a cleansing depot as opposed to any other kind of depot? (A) Its — it may be. It is described as a
depot which at the moment has a particular function and a particular range of
uses. Now, within the overall term those uses can change in relationship to one
another, and still not be material. However, it may be that another form of
depot would incorporate different forms of uses, if we now use the term ‘depot’
as accepted generally — would incorporate different forms of uses. Now, that
may be material, and without seeing the exact details I couldn’t say
categorically that any depot could occupy this site. (Q) I think you are going
a little bit ahead of me. What I was trying to ‘home in on’ was this. In your
opinion, there is no difference, in terms of existing use, between the use as a
depot for a cleansing department and use as a depot for the highways engineers
department, providing that something different is not happening on the
site? (A) Yes. (Q) In terms of the
balance of uses? (A) In terms of the
balance of uses, yes. (Q) But am I right in saying that the existing use is an
additional requirement? (A) If you are
looking for a handle, then yes, you would use the general term ‘depot’ as such.
Then a little
later:
(Q) But it is really the relocation point which
makes you confident that any application for permission would be refused? (A) It would seem to be insurmountable as it
stands, yes. (Q) What is the existing use that you are concerned to be kept Mr
Geake? (A) The existing use is a
provision of the cleansing depot facility which serves the northern part of the
city. (Q) You have told us that the existing use, in your opinion, is not
confined to occupation by a cleansing department for the local authority? (A) No; it could be occupied as any other
depot. It is occupied as a cleansing depot, and there are no proposals for the
city council not to occupy it as a cleansing depot. (Q) So you are concerned to
protect the occupation of this particular occupier rather than the existing
use, which is as a depot? (A) In the
circumstances at present, the answer to that is yes. We have a statutory duty
to fulfil. There are functions that the city council must exercise in the
interests of the health and amenity of the residents, and this depot allows the
city council to exercise them.
Mr Green
objected that those questions raised issues of law, or at least of mixed law
and fact, which were not matters for Mr Geake, and that in any event the judge
had held that, in considering the existing use, it was relevant that the use as
a depot was ancillary to the cleansing of highways in the City of Westminster.
But in saying that, the judge was contrasting the purpose of the existing use
with the purposes of the proposed use by the board, namely to provide access to
the moorings on the adjoining canal, as being relevant to the question whether
or not planning permission was required at all. He did not hold that the
existing use was as a local authority depot; indeed he said:
The identity
of the occupier of any planning unit is irrelevant; it is what is done upon the
site, and not who does it, or the use to which the site is put, not who causes
it to be put to that use, which matters for planning purposes.
It was
accepted by the corporation that the judge was right in holding that the
identity of the occupier was irrelevant for planning purposes, but the
following paragraph appears in its skeleton argument:
Where a
particular existing occupier is unique in the sense that there is only one
cleansing department of this council it inevitably follows that preservation of
existing use entails preservation of user by the particular occupier.
The corporation
submitted that it is a material consideration for planning purposes that the
council should continue to operate such a depot, and that there is no other
appropriate site available on which to do so. Gypsy Site Action Group v Secretary
of State for the Environment [1981] JPL 874 shows that evidence of
alternative sites may be material to planning applications.
This, in my
judgment, is to confuse the preservation of existing planning use with a
preservation of user by a particular existing occupier, which is not generally
a material planning consideration, although there may be cases in which the
identity of the occupier is so closely linked to the use of the land that the
two concepts merge. Planning is concerned with development of land and not with
protection of existing occupiers. In this case the land is used as a depot.
Although no doubt very convenient for the corporation, the land could be used
as a depot by other occupiers; building contractors, private road contractors,
or even the board itself spring immediately to mind, though there will probably
be others.
At the
conclusion of his judgment the judge said:
So here, says
Mr Green, the corporation had the alternatives of making a compulsory purchase
order or refusing planning permission, and it was therefore right for it to
choose the less expensive course of refusing planning permission. This, in my
judgment, simply will not do. In the present case the refusal of planning
permission is simply to serve the interests of the corporation itself: to
preserve the position of the corporation as a tenant. Statutory powers
conferred upon local authority are not basically intended to be used for their
own benefit, but for the benefit of the population which they serve. Hence, in
the present case it is wholly unacceptable that the corporation should use its
planning powers for the purpose of preserving its own situation as a tenant
merely for the sake of saving the money which it would have to expend if it
were to acquire the premises through a compulsory acquisition.
With respect
to the learned judge, those observations, with which I agree, seem to me to be
inconsistent with his finding that planning permission was likely to be refused
on appeal to the minister. If the refusal of planning permission was simply to
serve the interests of the corporation and to preserve its position as a
tenant, that would not be a material consideration under section 29 of the Act.
Mr Green objected to those observations by reference to Mr Geake’s evidence in
the following answers:
(Q) Now it is quite obvious, as my lord has said
a number of times, an obvious by-product of refusal is that it defeats the
landlord’s — or it may defeat the landlord’s–claim to possession in this case? (A) Yes. (Q) Without beating about the bush. Now,
if these proposals are made in the form of a planning application, first of
all, in your opinion — although in a sense it is entirely a matter for my lord
— in your opinion, would it be material even for you to consider defeating the
landlord’s claim for possession, or would it be a material planning
consideration? (A) It is not a material
planning consideration.
Mr Green
submitted that there was no evidence that the corporation’s refusal of planning
permission would be based on any considerations other than material
considerations under section 29(1). But this seems to me to be inconsistent
with the judge’s view that the only ground on which planning permission could
be refused was because there was no alternative site on which the corporation
could reasonably be expected to carry on its essential street cleaning
functions. Mr Green’s submission is also inconsistent with the passage at the
end of the judgment which I have quoted above. A refusal of planning permission
in these circumstances would have the effect of doing the very thing which it
is common ground is not a material consideration under section 29, namely to
protect the corporation’s occupation of the premises, and to preserve its
tenancy.
The demised
premises are adjacent to the Paddington Basin. The opposite side of the basin
is already being developed as an extension of St Mary’s Hospital. The basin
itself leads to 2,000 miles of inland waterways, and under the provisions of
section 105 of the Transport Act 1968 the board has a duty to maintain the
waterways in a suitable condition for commercial and cruising craft. It is
entitled, under the Town and Country Planning General Development Order 1977
(SI 1977 no 289) to place moorings in the basin without planning permission.
The only access to the moorings is over the demised site, and the development
is in accordance with the GLC development plan and in particular with the City
of Westminster District Plan adopted in April 1982. In chapter 7, Recreation
& Leisure, the latter plan provides, under paragraph 7.16:
The City
Council will seek to maintain and increase the provision of open space in
Westminster particularly in relation to the priority areas listed in para 7.11
by means of the following policies: (iv) to require the provision of a riverside
walk where opportunities arise in connection with development schemes adjoining
the Thames. Where appropriate to have regard to the provision of easier access
to water borne activities through piers and steps. (v) To seek the completion
of the remainder of the Canalside Walk and to encourage increased recreational
use of the water space of the canal and basins.
As against
those considerations, which favour the grant of planning permission, the only
ground for refusal advanced is a non-material consideration calculated to
protect the occupation of the corporation, who are themselves the planning
authority and may therefore be regarded as judges in their own cause.
In those
circumstances a reasonable man in the position of the board would, in my
judgment, conclude that the probability was that even if the corporation
refused planning permission, the Secretary of State on appeal, acting
judicially, would probably grant planning permission, and if he refused it on
the grounds suggested by the judge, that his decision would in all probability
be reversed on judicial review.
I would allow
the appeal and on the preliminary issue refuse the application for a new lease.
Agreeing,
SLADE LJ said: The argument before this court in this case has clearly taken a
course very different from that which it took before Walton J. I suspect that,
if the learned judge had had the benefit of the submissions which have been
made to us, his decision might well have been a different one.
I have had the
advantage of reading in draft the judgment of Dunn LJ. Since I respectfully
agree with it and he has stated the material facts, I will merely set out
fairly shortly in my own words the reasons which lead me, too, to the
conclusion that this appeal should be allowed.
As is stated
in the judgment of Upjohn LJ in Gregson v Cyril Lord Ltd [1963] 1
WLR 41 (at pp 45-46), the authorities establish that, to prove an intention to
occupy demised premises for the purposes set out in section 30(1)(g) of the
Landlord and Tenant Act 1954, 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 . . .
Secondly, the
landlords must prove that in point of possibility they have a reasonable
prospect of being allowed to bring about this occupation by their own act of
violation.
The decision
of the House of Lords in Betty’s Cafes Ltd v Phillips Furnishing
Stores Ltd [1959] AC 20 shows that such intention and prospect have to be
ascertained as at the date of the hearing.
In the present
case Walton J expressed himself as quite satisfied that if the appellant board
could once obtain possession of the relevant premises from the respondent
corporation, they genuinely intend to do as they said they intend. The
corporation do not challenge this finding, so that no point arises as to the
first of the two relevant requirements.
The only
question is whether the board have established a reasonable prospect of being
able to bring about their occupation of the premises by their own act of
volition.
In this
context (as in Gregson v Cyril Lord Ltd) no question arises as to
difficulties of finance or any other practical points of that sort; the only
point made against the landlords is that they have not established the
requisite intention for the purposes of section 30(1)(g), on the grounds that
they have not obtained planning permission and have not established a
reasonable probability of obtaining it.
Before the
judge, as he said, the board’s main submission was that no planning permission
was required. However, this submission has not been pursued before this court,
where it has been accepted that such permission will be necessary because the
board’s intentions do involve a material change of use of the premises. To
anyone unacquainted with the mysteries of planning law, it might appear strange
that the body to whom the board would have to apply in the first instance for
the requisite planning permission is none other than the corporation itself
which, in its capacity as tenant of the premises, would have a particular
interest in ensuring that such permission was withheld. The board has
challenged the correctness of the judge’s inference that the corporation would
use its planning powers ‘for the purpose of preserving its own situation as a
tenant merely for the sake of saving the money which it would have to expend if
it were to acquire the premises through a compulsory acquisition’. Nevertheless,
neither side challenges the conclusion of the judge that if the board did apply
for planning permission to the corporation, the corporation would in fact
refuse it.
If and when
such refusal occurred, the board would have a right of appeal to the Secretary
of State. In the circumstances, the question whether the board can satisfy the
second of the tests propounded by Upjohn LJ resolves itself to the question
whether, upon the evidence before the court, a reasonable man in the position
of the board would at the date of the court hearing think that he had a
reasonable prospect of a successful appeal to the Secretary of State.
The learned
judge, who was of course fully alive to these tests, addressed his mind to the
latter question, but once again on the basis of rather different submissions.
In this court the argument of Mr Bagnall on behalf of the board has, I think,
substantially centred around two contentions, namely
(1) that for the purpose of
testing the prospects of a successful appeal to the Secretary of State, one
must assume that the board has regained possession of the premises by the time
that the appeal is heard;
(2) that if the Secretary of
State were to disallow any such appeal, such refusal would not be proper
because it could not relate to proper planning considerations, but would have
the ulterior purpose of preserving the particular occupation of the
corporation.
Dunn LJ has
already given reasons for accepting the first of these two contentions, with
which I respectfully agree. In Gregson v Cyril Lord Ltd (at p 49
of the report) Upjohn and Diplock LJJ clearly contemplated that one way in
which a landlord can surmount the planning permission hurdle for the purpose of
section 30(1)(g) is to show that he will have a reasonable prospect of a
successful appeal to the minister, if he makes no approach to the minister at
all until after he has actually been served with an enforcement notice (see
now, section 88 of the Town and Country Planning Act 1971). Any appeal to the
minister in such circumstances must ex hypothesi take place after the
landlord has regained possession of the premises. Furthermore, the decision in Gregson
v Cyril Lord Ltd (see at p 48 of the report) makes it clear that while
in some cases he may well be advised to do so, a landlord is under no
obligation to do anything at all about testing the planning position before
applying to the court for possession; it suffices for him to show by
appropriate evidence that on the balance of probabilities permission is not
necessary or that, if it is, he will probably obtain it.
So far as this
point may be relevant, I therefore think that for the purpose of testing the
prospects of a successful appeal to the Secretary of State, it is right to
assume that by the time when the appeal is heard the board will have regained
possession of the premises and the actual present use of the premises by the
corporation, as described by the judge, will have ceased.
However, in
relation to the second of Mr Bagnall’s contentions, it remains of crucial importance
to ascertain the existing planning use of the premises. For the Secretary of
State, in making his decision, would be limited to the consideration of
‘material considerations’ within the meaning of section 29 of the Town and
Country Planning Act 1971.
Mr Bagnall, on
behalf of the board, has submitted that the existing planning use of the
premises is simply that of a depot. Mr Green, in contrast, has submitted that
it is that of a cleansing depot. He has sought to derive support for
this submission from a passage in the judge’s judgment where he said this:
. . . the
proposed uses in each case — storage and parking — are neither of them as they
are here envisaged ends in themselves. They are in each case ancillary to a
wider purpose, which purpose unifies a number of activities — uses — which are
made of the premises. In the existing state of affairs, these uses are
ancillary to the cleansing of the highways in the City of Westminster and the
maintenance of the highways in that city; in the defendant board’s proposals,
they would be ancillary to the single but totally different purpose of
providing moorings on the adjoining canal.
However, in
this passage, as Dunn LJ has already pointed out, the judge was contrasting the
present use by the corporation with the proposed use by the board, in the
course of considering whether or not the board required planning permission at
all. He was not, I think, at that point directing his mind to the broader
question of the existing planing use of the premises. In another passage of his
judgment, he made it plain that he did not regard it as relevant for planning
purposes that the occupier of the premises happens to be a local authority; as
he put it, it is what is done upon the site and not who does it which matters for
such purposes. I do not consider that the judge has made any finding that the
existing planning use is as a cleansing depot or indeed as a local authority
depot.
Though there
is no specific finding to this effect by the judge, I think that, for the reasons
given by Dunn LJ, the proper inference from the evidence is that the existing
planning use of the premises is that of a depot, no more and no less. In the
absence of any evidence as to prior planning permission regulating the use of
the premises, I can see no reason why in this context we should not rely on the
affidavit and oral evidence of Mr Geake, to which Dunn LJ has referred. Mr
Geake is the area planning officer of the corporation and has worked in its
department dealing with the northern area of the City of Westminster for over
eight years. It seems that no one is in a better position than he to give
evidence as to such matters. In the course of his oral evidence, in a passage
already quoted by my lord, he expressed the clear opinion that the existing use
is not confined to occupation by a cleansing department of the local authority,
but could be occupied as any other depot. I can see no reason to dissent from
this view. As the judge himself pointed out, another of the corporation’s
witnesses, Mr Cooper, a director of cleansing of the City of Westminster, also
‘went out of his way’ to describe the premises as a depot, in an affidavit.
Once it is
accepted that the planning use of the premises is simply that of a depot, I
find it difficult to see, on the evidence before the court, upon what grounds
the Secretary of State could properly refuse the board the desired permission.
The Secretary
of State would be entitled to treat the value in planning terms of the existing
planning use as a depot as a material consideration in dealing with any
planning application by the board involving any change in the use of the
premises, at least unless there was no possibility that the refusal of planning
permission would result in the retention of the existing use (see Clyde
& Co v Secretary of State for the Environment [1977] 1 WLR 926,
and Granada Theatres Ltd v Secretary of State for the Environment
(1981) 257 ESTATES GAZETTE 1154). On the evidence, however, there is no reason
to suppose that the Secretary of State would wish to preserve the existing
planning use of the premises as a depot simpliciter. It might be that he would
wish, if he properly could, to exercise his powers by refusing the desired
permission to the board, with the purpose of indirectly procuring the
resumption of possession of the premises by the corporation and of their use as
a local authority cleansing depot. To refuse permission on these grounds,
however, would in my opinion involve a use of his powers for an ulterior
object, which, however desirable it might seem to him to be in the public
interest, would not be a proper exercise of those powers.
Mr Green
submitted that in any event the decision of the Secretary of State is incapable
of prediction because it would be partially based on policy considerations of
which neither the board nor the court have full knowledge. Though I take this
point, I think its force is greatly diminished by the fact that the
corporation, so far as I am aware, have not suggested either in evidence or in
argument any specific ground upon which the Secretary of State would be likely
to refuse permission, other than those referred to by Walton J himself, namely
the desirability of ensuring the continued use of the premises for the purpose
of street cleansing and the absence of any evidence as to the availability of a
suitable alternative site. These, as I have already indicated, are not in my
opinion material considerations. In contrast there are, in my opinion, a number
of positive factors which seem likely to lead the Secretary of State, having
disregarded these immaterial considerations, to the conclusion that a change of
user from that of a depot to the user proposed by the board would be
appropriate for approval. These factors have already been listed by Dunn LJ and
I will not repeat them.
For all these
reasons, and the further reasons given by him, I also reach the conclusion that
a reasonable man in the board’s position would probably conclude that after a
refusal of planning permission by the corporation, the Secretary of State on
appeal would probably grant planning permission and that if he refused it, his
decision would probably be reversed on judicial review.
Respectfully
differing from the learned judge, I, too, would therefore allow the appeal. I
would merely add that, as Mr Bagnall was at pains to concede, and indeed
emphasise, nothing in this decision will deprive the corporation of any powers
of compulsory purchase which they may possess and see fit to exercise in the
public interest.
The appeal
was allowed with costs in the Court of Appeal and below. Leave to appeal to the
House of Lords was refused.
