Regina (Westminster City Council) v British Waterways Board: HL 1985

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.’
Lord Bridge of Harwich
[1985] 1 AC 476, [1984] 3 WLR 1047
Landlord and Tenant Act 1954 30(1)(g)
England and Wales
CitedClyde and Co v Secretary of State for the Environment CA 1977
Planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of . .
ApprovedGregson v Cyril Lord Ltd CA 1962
A landlord opposing the grant of a new tenancy on the basis that he wished to conduct his own business from the premises, need not show that everything is in place to conduct the new business, but must be able to show that most obstacles to starting . .

Cited by:
AppliedSussex Investments Limited v The Secretary Of State For The Environment, Spelthorne Borough Council Admn 28-Oct-1996
The plaintiff requested that an enforcement notice should be quashed. Two earlier decision notices had already been quashed. At issue was a houseboat constructed on a floating wooden raft. There was an existing use certificate for a houseboat. Was . .
CitedLondon Residuary Body v Lambeth London Borough Council HL 1990
Planning battles had raged over the use of the former GLC County Hall. The question was whether it was desirable and appropriate to retain use of part of the building for London Government offices and centred on the ‘competing needs’ test.
CitedBloomsbury Health Authority v Secretary of State for the Environment 27-Jul-1992
Application was made for planning permission to use a redundant hospital building in Covent Garden for primarily office use. Policies of the local planning authority sought not only to restrain office use, but also to seek residential accommodation . .
CitedJackson Projects Limited v Secretary of State for Environment v Ipswich Borough Council Admn 9-Dec-1997
Application was made for a change of use for premises to Class B1 purposes. The draft local plan sought residential use of the premises. A lawful development certificate existed for Class B8 purposes. The applicant submitted at the Inquiry that, in . .
CitedChristchurch Borough Council v Secretary of State for the Environment CA 16-Dec-1993
The council appealed against the inspector’s decision to grant permission to a construction company to build houses on land. The land had formerly been used as a school playing field and was now surplus to requirements. The Council wished to put the . .
CitedFowles v Heathrow Airport Ltd ChD 15-Feb-2008
The landlord had opposed the tenant’s application to renew his tenancy, and the tenant also claimed title to additional land by adverse possession. The tenant asserted various business uses, some of which the landlord denied. The landlord went into . .
CitedHumber Oil Terminals Trustee Ltd v Associated British Ports CA 10-May-2012
The tenant appealed against a finding that the landlord was entitled to resist renewal of its lease under the 1954 Act challenging the stated intention of the landlord to occupy the premises for its own business purposes. It said that the proposed . .

These lists may be incomplete.
Updated: 26 December 2020; Ref: scu.182964