The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not get planning permission for the change of use (the tenant was also the planning authority).
Held: The test was objective. Would a reasonable man, looking at the situation from the outside think there was a reasonable prospect of planning permission being given. The tenant’s own occupation was not a legitimate planning objection, and the landlord had established a reasonable prospect of planning permission being granted. The House had to consider whether ‘the desirability of preserving an existing use of land may by itself afford a valid planning reason for refusing permission for a change of use’: ‘As it seems to me, the preservation of an existing use (which is temporarily suspended) cannot afford a ground to refuse permission for an otherwise acceptable change of use, unless it can be shown that the refusal may reasonably be expected to lead to a resumption of the suspended use. This raises questions as to the true scope, for planning purposes, of the established existing use of the premises to which I must shortly revert . . . ‘In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will be effectively put to use A’.
Lord Bridge of Harwich said: ‘So long as the mixture of uses on the premises, which the judge held to be the relevant planning unit, remain substantially unchanged, there would be no material change of use. Those uses, as already indicated, included workshops, offices, stores, messing facilities and parking for a variety of vehicles both under cover and in the open. This is just such a mixture of uses as would be required by a wide variety of undertakings whose business was the operation of some kind of vehicular transport and who required a base from which to operate. Whether, in any particular case, the proposed use of the premises by such an undertaking would involve a material change of use would depend on the detailed nature of the proposal. But it would be of no relevance to the use of the premises to inquire for what purpose the vehicles parked there were to be used when they left their base.’
and ‘Before turning to the planning issues on which this appeal ultimately depends, it is necessary to dispose first of a question arising upon the construction of section 30(1)(g) of the Act of 1954. Since there has been no actual planning application by the respondents for permission to change the use of the premises and since we know that any such application would be refused by the appellants as local planning authority, what are the circumstances, necessarily hypothetical, in which the respondents’ prospects of success in such an appeal to the Secretary of State must be considered? More particularly, are the respondents’ prospects of success in such an appeal to be considered on the assumption that, when the Secretary of State has to decide the appeal, the respondents are entitled to possession of the premises and the appellants’ occupation has ceased? My Lords, it seems to me that an affirmative answer to that question is inescapable. A landlord opposing the grant of a new tenancy under section 30(1)(f) or (g) seeks to establish what he intends to do ‘on the termination of the current tenancy.’ If the only obstacle to his implementing an admittedly genuine intention is a suggested difficulty in obtaining a necessary planning permission, the plain language of the Act of 1954 requires that his prospect of success in overcoming that difficulty should be assessed on the footing that he is entitled to possession . . I hope I do Walton J no injustice, but I find it difficult to resist the conclusion that he approached the planning issue on the assumption of an uninterrupted occupation of the premises by the appellants (which the grant of a new tenancy would, of course, in practice ensure) and failed to appreciate that the Act of 1954 requires, for this purpose, a hypothetical resumption of possession by the respondents to be assumed . . if the notional planning appeal is considered on the assumption that the respondent landlords are entitled to resume possession, the continued use of the premises for the purpose for which they are presently used by the appellant tenants is by no means an inevitable consequence of the refusal of permission . . The Court of Appeal . . correctly approached the question of the respondents’ prospects of success in a notional planning appeal on the basis of an assumed entitlement to possession . . For my part, I find it difficult to see how [Westminster's] argument can be sustained at all, once it is appreciated that the respondents’ prospects of success in a notional planning appeal must be considered on the assumption that they, not the appellants, are in possession.’
Court:
HL
Date:
01-Jan-1985
Judges:
Lord Bridge of Harwich
Statutes:
Landlord and Tenant Act 1954 30(1)(g)
References: [1985] 1 AC 476, [1984] 3 WLR 1047
Cases Cited:
- Clyde & Co -v- Secretary of State for the Environment, CA, Cited, ([1977] 1 WLR 926)
- Gregson -v- Cyril Lord Ltd, CA, Approved, ([1962] 3 All ER 907, [1963] 1 WLR 41)
Cited By:
- Sussex Investments Limited -v- The Secretary Of State For The Environment, Spelthorne Borough Council, Admn, Applied, (Bailii, [1996] EWHC Admin 156)
- London Residuary Body -v- Lambeth London Borough Council, HL, Cited, ([1990] 1 WLR 744, [1989] 3 PLR 105, [1990] 2 All ER 309)
- Bloomsbury Health Authority -v- Secretary of State for the Environment, , Cited, (Unreported, 27 July 1992)
- Jackson Projects Limited -v- Secretary of State for Environment -v- Ipswich Borough Council, Admn, Cited, (Bailii, [1997] EWHC Admin 1107)
- Christchurch Borough Council -v- Secretary of State for the Environment, CA, Cited, (Times 05-Jan-94, [1993] NPC 167)
- Fowles -v- Heathrow Airport Ltd, ChD, Cited, (Bailii, [2008] EWHC 219 (Ch))
- Humber Oil Terminals Trustee Ltd -v- Associated British Ports, CA, Cited, (Bailii, [2012] EWCA Civ 596)
