Gregson v Cyril Lord Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DIPLOCK |
| Judgment Date | 30 October 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1030-3 |
| Date | 30 October 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J1030-3
In The Supreme Court of Judicature
Court of Appeal
From His Honour Judge Sir Alun Pugh
Bloomsbury County Court
The Master of The Rolls (Lord Denning)
Lord Justice Upjohn and
Lord Justice Diplock
MR DESMOND ACKNER, Q. C., MR DAVID TRUSTRAM EVE and MR JOHN C. TAYLOR (instructed by Messrs Stunt & Son) appeared as Counsel for the Appellants.
MR C. ROSS-MUNRO (instructed by Messrs Tuck Mann & Geffen & Co.) appeared as Counsel for the Respondents.
The question in this case is whether two osteopaths, who carry on their profession in Harley Street, are entitled to a now tenancy of their consulting rooms.
These two osteopaths, Webster and Mr Gregson, occupy a suite of rooms on the third floor of No. 1, Harley Street. The house itself is owned by their landlords, Cyril Lord Limited., who are dealers in furniture on a very large scale. They have a turnover of £11,000,000 a year. They already occupy the major part of No. 1, Harley Street, and they use it as their London offices. The landlords occupy three-quarters of the building (the basement, ground floor, first floor, half the second floor, and the whole of the fourth floor) offices. But the remaining quarter of the building (half the second floor and the whole of the third floor) is occupied by professional men for professional purposes. These two osteopaths occupy half of the third floor. They held their suite of rooms under twenty-one year lease which expired on the 25th March, 1962. They now apply to the Courts for a new tenancy of the rooms. The landlords oppose on the ground specified in Section 30(1) (g) of the 1954 Act: "We intend to occupy the premises in connection with our business carried on at 1, Harley Street und elsewhere". The burden is on the landlords to establish that ground to the satisfaction of the Court. If they do so, the Court is bound to refuse a new tenancy If they do not do so, the tenants will be entitled to a new tenancy.
There is no doubt that the landlords are anxious to have more space for their offices and they genuinely desire to occupy this suite as extra office accommodation for themselves. But the point is this: The landlords have not asked for planning permission for use as offices and they have no intention of asking for it. How does this affect the position?
It is a vexed question whether planning permission is necessary at all. The experts differed about it. One said it was necessary. The other that it was not. If and in so far asit is a question of law, I am inclined to think that permission would be necessary. When a house or flat is used as consulting rooms only (with the doctor nut resident there) then a change from consulting rooms to offices would, I should have thought, be a "material change in the use" and would need planning permission. It would not be exempt as being a purpose of the same class: because under the Town and Country Planning (Use Classes) Order, 1950 (1950 No. 1131), "use as a consulting room or surgery unattached to the residence of the consultant or practitioner" comes under Class XV: and "use as an office for any purpose" comes under Class II.
If planning permission is necessary, it is an even more vexed question whether at would be granted or not. The policy of the planning authority has varied from time to time. Between 1951 and 1955 the policy was to keep the Harley Street area as a "special precinct" so as to preserve its character as a medical enclave. At that time it would seem unlikely that permission would be given for use as offices. Between 1955 and 1960 the policy changed. The Harley Street area was no longer designated as a special area but as residential; and so far as No. 1 Harley Street is concerned (which is on the corner of Wigmore Street), it was put into a "central zone" primarily intended for offices. At that time it would seem likely that permission would be given to use the suite as offices. But in 1960 the policy changed again. Proposals have been made whereby No. 1, Harley Street is to be included in a "West End Zone" where office development is to be restricted. But even though office development is restricted, I can well see that, inasmuch as so much of No. 1, Harley Street is already given over to offices, the planning authority might give permission for this suite also to be used. The experts differed on this point also. One said he thought that permission would be given. The other thought it would not.
The Judge declined to rule on these vexed questions.
"It is not for a Court of Law", he said, "to decide whether planning permission is necessary". Nor was he going into the prospects of obtaining planning permission. "At this stage", he said, "I am not entitled to consider it".
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. Lord Justice Asquith put it well in Cunliffe v. Goodman, 1950, 2 K. B. at p. 253, when he said: "If there is a sufficiently formidable succession of fences to be surmounted before the result at which aims can be achieved, it may well be unmeaning to say that '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 then 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 promises 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 . B., 173: and the Court will not lend its aid to him so as to enable him to break the planning law.
If such be the case when his intention in to do something which is clearly unlawful, what is the position what it is a vexed question and open to doubt? The landlord is not obliged under planning law, so it is said, to got 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 cay, 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. I find support for this from the Judgment of Mr Justice Danckworts in the unreported case of ( Aperobar Limited. v. German 8th December, 1960) to which Mr Ackner referred us. The promises there were used as a restaurant and the landlords intended to use thorn for solicitors' offices. Mr Justice Danckworts said: 'It seems to me that planning permission would be required and there seems to be considerable doubt whether it would be given…. the town planning authority might well think that in the circumstances of this street a restaurant should be retained and permission should not be given". That was a factor in leading him to hold that the landlords had not the requisite, intention.
In the present case the Judge, as I read his Judgment,has declined to go into the question whether planning permission was necessary or, if it was necessary, what were the prospects of it being granted. Suffice it for him that the landlords had a bona fide intention to occupy. I do not think it was sufficient unless they also showed that they had a reasonable prospect of getting over the hurdle of planning permission. The best way of doing it would, of course, be to apply for and obtain planning permission: but it is not essential for them to go to that length. They may be able to show it in other ways. But I do not think this Court can resolve it. The case must go back for a rehearing on this matter.
The Judgment which I am about to read is the Judgment of Lord Justice Upjohn, with which I agree.
The question we have to decide is whether the respondent landlords have established that they intend to occupy the promises leased to the appellants for the purposes of Section 31(1)(g) of the Landlord and Tenant Act, 1954.
The question whether the landlords intend to occupy the premises is primarily one of fact, but the...
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