Warwickshire Aviation Ltd & 6 Ors v Littler Investments Ltd (2018)
The landlord of an airfield who had served notices to terminate the tenancies of companies that rented premises there had made out its opposition to the companies' application for the grant of new tenancies on the ground that it intended to demolish the premises. Given that the local authority had a broad discretion in determining planning applications, the landlord had established on the facts a reasonable prospect of obtaining permission to demolish the premises notwithstanding the local authority's development plan contained a principle to retain and support aviation-related facilities at the airfield.
Following the claimant tenants' application for the grant of new tenancies for their premises, the court had to determine a preliminary issue as to whether the defendant landlord had made out its opposition to the grants.
The defendant owned an airfield. The claimants were companies that rented premises there to provide aviation-related facilities. The defendant found that the financial commitment involved in operating the airfield was substantial whereas the income generated was only modest; consequently, it decided to run down aviation-related activities. It served notices to terminate the claimants' tenancies as it wanted to demolish the buildings and promote the airfield for residential development. The claimants applied to the court under the Landlord and Tenant Act 1954 for the grant of new tenancies. The defendant opposed the application under s.30(1)(f), which allowed a landlord to oppose such grants on the ground that it intended to demolish the premises comprised in its holding.
The issue was whether the defendant could show that it had a reasonable prospect of obtaining planning permission from the local authority to demolish the claimants' premises. The claimants submitted that "reasonable prospect" meant a greater than one in three chance of obtaining planning permission, and such permission was likely to be refused as demolition would be inconsistent with the local authority's development plan, which contained a principle to retain and support aviation-related facilities at the airfield.
The defendant had satisfied the burden of establishing at least a reasonable prospect of success on a notional planning application to demolish the premises, Cunliffe v Goodman  2 K.B. 237 followed (see paras 32-33 of judgment). In so concluding, the court made the following findings:
It was not helpful or appropriate to determine a fixed percentage figure that had to be achieved to establish a reasonable prospect of success. The words "reasonable prospect" spoke for themselves and their meaning was not and should not be susceptible to statistical analysis (para.71).
Although the local authority's development plan included a principle to retain and support aviation-related facilities at the airfield, the plan's policy conferred a broad discretion on the local authority to determine the extent to which, if at all, that principle applied to a planning application for demolition and whether it was reasonable and appropriate for the defendant to contribute to the principle's objective (para.82).
It had to be assumed that, at the time of the notional planning application, the claimants had vacated the premises, the defendant had regained possession, and the current aviation-related use of the buildings had already ceased, Westminster City Council v British Waterways Board  A.C. 676 followed (paras 37, 82).
Application of the principle to retain and support aviation-related facilities would be strongly justified if there was a real likelihood, rather than merely a bare possibility, of the buildings being reused in the future for aviation-related purposes. However, a material consideration would be the actual likelihood of aviation-related use being reinstated in the buildings if consent for demolition was refused, Westminster CC followed (paras 79, 82)
It would be relevant for the local authority to consider objectively what the defendant was likely to do having regained possession of the buildings. Planning control could not lawfully be used to force the defendant to reinstate aviation-related use of the buildings (para.82).
The evidence indicated that, on legitimate and substantial economic and commercial grounds, there was no realistic prospect of the defendant reinstating aviation-related use of the buildings if demolition consent was refused. That would be a material consideration for the local authority to take into account in exercising its broad discretion (para.82).
Preliminary issue determined in favour of defendant
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25 Jun 2018
County Court (Birmingham)
Judge Richard Williams
LTL 29/11/2018 :  6 WLUK 683
Thomas Grant QC