Westminster City Council v British Waterways Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Wilberforce,Lord Scarman,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 31 October 1984 |
| Judgment citation (vLex) | [1984] UKHL J1031-1 |
| Date | 31 October 1984 |
| Court | House of Lords |
[1984] UKHL J1031-1
House of Lords
Lord Fraser of Tullybelton
Lord Wilberforce
Lord Scarman
Lord Roskill
Lord Bridge of Harwich
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich, and I agree with it. For the reasons given by him I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech by my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it and for the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons which he gives I would dismiss this appeal.
My Lords,
This appeal arises from an application by the appellants, made pursuant to section 24 of the Landlord and Tenant Act 1954 for the grant of a new tenancy of Nos. 33, 35 and 37 North Wharf, Paddington ("the premises"). The respondents opposed the grant of a new tenancy on the ground afforded by section 30(1)( g) of the Act that on the termination of the current tenancy they intend to occupy the premises for the purposes, or partly for the purposes, of a business to be carried on by them therein. As is usual in such cases, it was agreed between the parties that the court should be invited to determine as a preliminary issue whether the respondents, as landlords, were able to establish the ground on which they relied pursuant to section 30(1)( g). If so, the court would be precluded by the provisions of section 31(1) from ordering the grant of a new tenancy. If not, the terms of the new tenancy to be granted, if not agreed, would be referred for determination by the court following a further hearing. In deciding the preliminary issue Walton J. held that the respondents failed to establish the necessary intention to defeat the appellants' claim. The Court of Appeal (Dunn and Slade L.JJ.) reversed the decision of Walton J. and dismissed the appellants' application. From that judgment the appellants now appeal by leave of your Lordships' House.
The premises form part of a much larger area of land around the Paddington Basin of the Grand Union Canal of which the respondents are the freehold owners. The respondents intend to use the Basin for the mooring of pleasure craft. The word "marina" affords a convenient, if not wholly accurate, term to describe this use. The respondents intend to occupy the premises predominantly for purposes ancillary to the use of the marina. The bona fides of this intention has never been in dispute. The question is whether the respondents can establish their ability to implement their intention, for the purposes of section 30(1)( g) of the Act of 1954, having regard to the fact that this will involve the making of a material change in the use of the premises (which was disputed before the judge, but is now accepted by the respondents) and will therefore require the grant of planning permission under section 23 of the Town and Country Planning Act 1971. If the respondents applied for planning permission, the appellants are the local planning authority to whom it would fall in the first instance to decide whether permission should be granted or refused, thus making them judge in their own cause. They have made it clear that they would refuse such an application. From such refusal the respondents would be entitled, and in the circumstances would no doubt be expected, to appeal to the Secretary of State under section 36 of the Act of 1971. However, no application for planning permission has in fact been made.
In these circumstances the test to be applied by the court trying the issue raised by the landlord's opposition to the grant of a new tenancy is not in doubt. As it was put in the judgment of Upjohn L.J., read and agreed to by Diplock L.J. in Gregson v. Cyril Lord Ltd. [1963] 1 W.L.R. 41, 48:
"It is an objective test upon the evidence before the court: have the landlords established, not what the planning authority or the Minister would determine, but the different and practical question: would the reasonable man think he had a reasonable prospect of giving effect to his intention to occupy? On the facts of this case ….. this amounts to an inquiry whether the landlords on the evidence have established a reasonable prospect either that planning permission is not required or, if it is, that they would obtain it. This does not necessitate the determination by the court of any of the questions which may one day be submitted to the planning authority or to the Minister; it is the practical appraisal upon the evidence before the court as to whether the landlords, upon whom, let me stress, the onus lies, have established a reasonable prospect of success."
My Lords, I believe this test has been consistently applied ever since and it is, if I may respectfully say so, clearly right.
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 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.
In the overwhelming majority of cases arising for determination under section 30(1)( f) or ( g) of the Act the consideration to which I have drawn attention in the foregoing paragraph will be of no significance, since the question whether or not the tenant remains in occupation will normally be of no relevance to the planning issue raised by the landlord's proposal for development. It is otherwise, however, in the present case where, as will shortly appear, the appellants' claim to remain in occupation is the central, if not the exclusive, ground on which the appellants, as local planning authority, rely in support of their contention that planning permission for the respondents' proposed change of use of the premises ought to be refused.
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...
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