Tollbench Ltd (Respondent v Plymouth City Council (Appellant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR. JUSTICE WAITE |
| Judgment Date | 03 March 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0303-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0187 |
| Date | 03 March 1988 |
[1988] EWCA Civ J0303-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
(His Honour Judge Sir Jonathan Clarke)
Royal Courts of Justice
Lord Justice May
and
Mr. Justice Waite
88/0187
MR. ANTHONY DONNE (instructed by Messrs Goldberg, Plymouth) appeared on behalf of the Respondent/Applicant.
MR. MICHAEL BELOFF, Q.C. and MR. CLIVE NEWBERRY (instructed by the Town Clerk, Plymouth City Council) appeared on behalf of the Appellant/Respondent.
This is an appeal from a judgment and declaration of His Honour Judge Sir Jonathan Clarke in the Plymouth County Court on 10th November 1987.
The learned judge had before him on that occasion an originating application by a tenant, the respondent in this court, under section 53 of the Landlord and Tenant Act 1954. The relief claimed was not entirely in accordance with the wording of the statute, but the situation was that the tenant had applied to its landlords, the City Council, who were the appellants before us, for their consent to a change of user of premises at 93 Cornwall Street, Plymouth of which the respondent was the tenant. The appellants had withheld their consent. The respondent contended that in doing so they were unreasonable and sought a declaration from the court to that effect.
The relevant statutory provision is, as I have said, section 53 of the Landlord and Tenant Act 1954. I need only read subsection 1 (c) and subsections (2) and (4):
"53- (1) Where a landlord withholds his licence or consent—
(c) to a change in the use of the demised property or any part thereof, or to the making of a specified use of that property,
and the High Court has jurisdiction to make a declaration that the licence or consent was unreasonably withheld, then without prejudice to the jurisdiction of the High Court the county court shall have the like jurisdiction whatever the value of the demised property or the rent payable under the tenancy and notwithstanding that the tenant does not seek any relief other than the declaration.
(2) Where on the making of an application to the county court for such a declaration the court is satisfied that the licence or consent was unreasonably withheld, the court shall make a declaration accordingly.
(4) Nothing in this section shall be construed as conferring jurisdiction on the county court to grant any relief other than such a declaration as aforesaid."
The brief facts of the case are these. As I have said, the respondent was the tenant of the appellant of premises under a lease containing not unusual tenants' covenants, amongst them being subclause 2 (10) (ii) and 2 (12), each of which read in this way:
"(ii) Not without the previous consent in writing of the Corporation (which consent shall not unreasonably be withheld) at any time during the said term to use the premises for any purpose other than for the purposes of a retail shop and not to use the premises or any part thereof for residential accommodation or for the purpose of offices except offices ancillary only to some other non-prohibited purpose.
(12) Not to use the premises or any part thereof nor knowingly to permit or suffer the same to be used for any illegal or immoral purpose nor for the carrying on of any noxious offensive noisy or dangerous trade or process nor knowingly to permit or suffer to be done in or upon the premises or any part thereof anything which may be or become a nuisance or annoyance to the Corporation their lessees or tenants or occupiers of any adjoining or neighbouring property…."
Until recently, under an earlier change of user, the premises were used as a restaurant. It seems that the restaurant trade had been badly affected by a substantial amount of pedestrianisation in the area. The respondent consequently conceived the idea to change the user to what was originally described as a restaurant with amusement facilities. The learned judge in his judgment described that in this way:
"This…..involves the provision of an attractive frontage a table and seating area with a servery from which on a self-service basis will be sold food for consumption on the premises…mainly jacket potatoes…pies and puddings…In approximately one half of the premises immediately to the rear of the seating area will be machines variously described as gaming machines or amusement with prizes machines. These…. will not be of the video game type…nor of the jackpot type and will be machines which when played can deliver a token or tokens to a maximum of £4 which in turn can be exchanged for an equivalent prize."
However the learned judge was understandably sceptical about the proposed change and, after hearing the evidence, indicated in his judgment that he had no hesitation in finding that the proposal could not properly be described as a restaurant with amusement facilities, but more properly as an amusement hall with ancillary snack refreshments provided.
Be that as it may, the proposed change of user by the respondent required, in addition to the landlord's consents planning permission from the local Planning Authority, which happened to be the appellant wearing another hat, and an appropriate Gaming Licence. Again the application had to be made to the appellant, but in yet another capacity.
Planning permission was granted on 17th July 1987. On 24th July the appellant's Local Economy Committee referred the question of granting consent as landlord to the full Council with a recommendation that the Council should refuse it. On 17th August 1987 the appellants granted the respondent an appropriate Gaming Licence. However, despite the success in the planning and gaming fields, on 26th August 1987 the respondent's were refused landlord's consent under the terms of the lease by the Council.
That refusal led to the application by the tenant to the County Court, which was the one upon which the learned judge adjudicated. It is right to comment that the evidence led on behalf of the appellants as to the reasons for the Local Economy Committee and the Council refusing consent were not substantial. Nevertheless on what he had the learned judge held, first: "I am though in no doubt and so find that there was a concensus majority view held at both of these meetings which was articulated by the Council Officers whom I have heard that, if granted, these premises and the amusement machines in particular could and probably would attract an undesirable element to the area. This in turn could and probably would lead to vandalism and disorder generally and would result in an undermining of the economic fabric of this part of Cornwall Street."
He then held secondly: "…. if one looks at the matter objectively I have no doubt that the fears of the Council Officers and the views of the Councillors as I infer them to be are soundly based and justified and that this proposal could and probably would lead to an attraction to the premises of an undesirable element present in the City. This in turn could lead to the true middle aged and respectable shopper tending to shun not only the premises, but the immediate area surrounding them. This could in turn lead to an undermining of the economic fabric of the immediate area." Having found in those terms, one might have been forgiven for thinking that the learned judge would then swiftly go on to have held the refusal of consent to have been reasonable.
However he turned in the course of his judgment to consider the second way in which the matter was put before him, and before us, on behalf of the tenant. Briefly, it was to the effect that the Council's decision had been reached in an unreasonable way and was therefore necessarily unreasonable itself.
What was argued was that the Local Economy Committee and/or the Council had acted on various misconceptions, had taken into account objections which were themselves based on misconceptions, had failed...
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