Warwickshire Aviation Ltd v Littler Investments Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 25 March 2019 |
| Neutral Citation | [2019] EWHC 633 (Ch) |
| Docket Number | Case No: BM80120A, BM80124A to BM80129A |
| Court | Chancery Division |
| Date | 25 March 2019 |
[2019] EWHC 633 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
ON APPEAL FROM THE ORDER OF HHJ RICHARD WILLIAMS
SITTING IN THE COUNTY COURT AT BIRMINGHAM
CASES No. C00WW226 to C00WW231 and C00WW235
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Mr Justice Birss
Case No: BM80120A, BM80124A to BM80129A
John Steel QC and Philippa Jackson (instructed by Wright Hassall LLP) for the First to Third Appellants
Lesley Anderson QC and John Hunter (instructed by The Wilkes Partnership) for the Fourth Appellant
Thomas Grant QC and Paul Clarke (instructed by Smith Partnership) for the Respondent
Hearing dates: 17th January 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Birss
This is an appeal from the order of His Honour Judge Richard Williams made on 25 th June 2018 sitting in the County Court at Birmingham. The judge heard a preliminary issue in a claim for new tenancies under Part II of the Landlord and Tenant Act 1954 by various tenants of premises at Wellesbourne Mountford Airfield in Warwickshire. The tenants were the claimants in a series of parallel claims. The defendant in each case was the freehold owner of the airfield (“Littler”).
The judge found in favour of Littler and dismissed the claims for new tenancies. Before the judge there were seven claimants but on appeal three have settled, leaving four remaining. What is now the fourth appellant (“Take Flight”) is separately represented.
The proceedings arose in the following way. The Littler family has owned the airfield since before World War II. The defendant company is owned by some members of the family. The Littler family would like to maximise the value of the airfield. They contend that the airfield only generates a modest income and if possible they would like to promote the site for residential development. This is controversial in the local area.
The first appellant Warwickshire Aviation Limited has operated an aircraft maintenance and leasing business at the airfield since 2004. It maintains approximately 40 to 50 aircraft each year. The second appellant Mr Timms operates the café business at the airfield. The café attracts 40,000 customers a year and employs 13 staff. Mr Timms acquired the business in 2000. The third appellant South Warwickshire School of Flying Limited runs a flying school business. The school trains 30 to 35 pilots each year and employs up to 10 staff instructors. I will refer to these three appellants as “the WTS appellants”.
The fourth appellant Take Flight operates as a flying school and a flying club. The flying club has 300 members with 15 freelance flying instructors and currently operates 16 aircraft.
Each of the tenants had oral monthly periodic tenancies. Littler served notices on 8 January 2016 terminating the current tenancies on 24 December 2016. The tenants issued these proceedings on 29 September 2016 seeking the grant of new 15 year tenancies. That was opposed by Littler on the ground that it wanted to demolish the premises occupied by the tenants. Trial of a preliminary issue was directed. The preliminary issue was whether Littler had made out the ground of opposition to the new tenancies under s30(1)(f) of the 1954 Act. This permits a landlord to oppose the grant of a new tenancy on the ground:
“that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding.”
As the judge explained in paragraph 33 of his judgment, citing Cunliffe v Goodman [1950] 1 All ER 720, CA, the effect of that provision is that the landlord can successfully oppose the grants of new tenancies, if the landlord can show that (i) it has the intention to demolish the buildings and (ii) there is a reasonable prospect of being able to bring about that intention.
The first limb (i) relates to the landlord's subjective intention. There was no dispute before the judge that this was satisfied. Littler does intend to demolish the buildings (judgment paragraph 34).
The issue before the judge was the second limb (ii) concerning a reasonable prospect of bringing that intention about. This was a live issue because although normally permitted development would include a right to demolish the buildings, on 14 December 2016 Stratford-on-Avon District Council made an order under Article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015, which removed those permitted development rights. As a result Littler required planning permission to demolish the buildings. Thus the question for the judge resolved down to whether Littler could show a reasonable prospect of obtaining planning permission to carry out the intended demolition works.
The main evidence before the judge which bore on that question was the rival opinions of two planning experts, Mr Best for the tenants and Mr Nicholls for Littler. The experts had filed reports. They also met together and summarised the areas of agreement and disagreement. The trial took four days starting on 1 st May 2018 with a site visit on the first day, oral evidence of fact witnesses and the experts and closing submissions on the final day. The judge's reserved judgment was given on 25 th June 2018.
The judgment
In his judgment the judge accurately summarised the background, circumstances and matters which were not seriously disputed in paragraphs 1 to 31. This included a reference to evidence from Mr Currie for Littler as follows:
“31. Mr Currie stated that, if the Defendant recovers possession of the premises occupied by the Claimants, it is the Defendant's settled intention to demolish the buildings thereon as soon as possible, since operating the Airfield is an expensive and onerous obligation. In the event that the Defendant was then unable immediately to obtain planning permission for residential development, the Defendant would consider alternative sources of income from the Airfield such as vehicle storage, car parking, motorcycle training and off road/under 17 driver training.”
The judge dealt with the 1954 Act in paragraphs 32–37. He started by setting out s30(1)(f), referring to the two limbs of the test and Cunliffe v Goodman, and noting that there was no issue about the first limb and that the issue concerned the second limb. In paragraph 35 the judge referred to Gregson v Cyril Lord [1963] 1 WLR 41 (Upjohn LJ) making the point that it was not for the court to finally decide questions that may in due course be submitted to the planning authority. Before him Littler, who bore the burden of proof, had to establish only a reasonable prospect of success on such a planning application. Then at paragraph 36 the judge cited a passage from the judgment of Saville LJ in Cadogan v McCarthy and Stone (Developments) Ltd [2000] L&TR 249 for what a reasonable prospect in this context means. It means a real chance as opposed to a merely fanciful one. It does not entail that it is more likely than not that the permission will be obtained. No criticism of the judge arises from any of this.
Paragraph 37 of the judgment acknowledges the tenants' evidence that their businesses were viable and important to the local economy and community. However as the judge then explains, this is not relevant to the question he has to decide because the correct construction of the words “on the termination of the current tenancy” in section 30(1)(f) means that the question involves considering a notional planning application on the assumption that the landlord has already taken possession and the tenants have vacated the premises. Authority for that proposition is Westminster CC v British Waterways Board [1985] AC 676.
Paragraph 38 refers to planning law: s70(2) of the Town and Country Planning Act 1990 (TCPA) as well as s38(6) of the Planning and Compulsory Purchase Act 2004 (PACP). The former provides that the planning authority “shall have regard to” amongst other things: the material provisions of the Development Plan and of any post-examination draft neighbourhood development plan, as well as “any other material considerations”. The latter provision provides that if “regard is to be had” to the Development Plan then the determination “must be made in accordance with the plan unless material considerations indicate otherwise.”
The judge then turned to the terms of the Development Plan itself, the terms of a post-examination draft neighbourhood development plan (the Examiner's report having been published only days before the trial) and, under the rubric of other material considerations, the National Planning Policy Framework. The latter was something the experts agreed would be considered under that rubric. Given the importance of these materials, I will set out these parts of the judgment in full. Starting with the Development Plan adopted 11 July 2016:
“40. The Development Plan refers to the Airfield at Policy AS.9 and Policy CS.26.
41. The introductory paragraph to Policy AS.9 states that:
The Council will apply the following principles in considering development proposals and other initiatives relating to the Wellesbourne area. It will assess the extent to which each of these principles is applicable to an individual development proposal. Developers will be expected to...
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