Home Information Cases (1) Warwickshire Aviation Ltd (2) Terence Timms (3) South Warwickshire School of Flying Ltd (4) Take Flight Aviation Ltd v Littler Investments Ltd (2019)

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(1) Warwickshire Aviation Ltd (2) Terence Timms (3) South Warwickshire School of Flying Ltd (4) Take Flight Aviation Ltd v Littler Investments Ltd (2019)

Summary

A judge had not erred in finding that an airfield owner had a reasonable prospect of obtaining planning permission to demolish buildings on the site to enable residential development, notwithstanding that the local authority's development plan contained a principle to retain and support aviation-related facilities at the airfield. The plan expected developers to contribute to achieving the principle where it was "appropriate and reasonable", conferring a discretion that allowed the local authority to take into account that the owner, for legitimate economic reasons, did not intend to re-instate the buildings' aviation-related uses even if demolition consent was refused.

Facts

The appellant tenants appealed against the dismissal of their claim for new tenancies.

The tenants rented buildings at the respondent landlord's airfield, from which they provided aviation-related facilities. The landlord had served notices to terminate their tenancies as it wanted to demolish the buildings and promote the airfield for residential development. When the tenants applied to the court for the grant of new tenancies, the landlord relied on the Landlord and Tenant Act 1954 s.30(1)(f) to oppose such grants on the ground that it intended to demolish the premises. The judge found that the landlord had a reasonable prospect of obtaining planning permission to demolish the premises notwithstanding that the local authority's development plan contained a principle to retain and support aviation-related facilities at the airfield. He concluded that the plan's policy conferred a broad discretion on the local authority's decision-maker to determine the extent to which that principle applied to a planning application for demolition. He further found that it had to be assumed that, at the time of the notional planning application, the landlord had regained possession of the buildings, and a material consideration for the decision-maker would be the actual likelihood of aviation-related use being re-instated if consent for demolition was refused. He concluded that there was no realistic prospect of reinstatement because the landlord had legitimate and substantial economic and commercial grounds for ending the aviation-related use.

The tenants submitted that the judge had erred in finding that the landlord's future intention for the buildings was a relevant consideration, as that would enable landowners to frustrate the planning system and always succeed in obtaining demolition consent simply by asserting an intention not to continue the premises' existing use. They further submitted that the judge had erroneously relied on Westminster City Council v British Waterways Board [1985] A.C. 676to find that the planning authority would apply a balance of probabilities test to determine whether a refusal of demolition consent would result in a reinstatement of aviation-related use.

Held

Relevance of the landowner's future intentions - The development plan conferred a discretion on the local planning authority's decision-maker. The plan's policy did not require developers to retain and support existing aviation-related facilities at the airfield regardless of the circumstances. It only stated that developers were expected to contribute to the achievement of that objective "where it is appropriate and reasonable for them to do so". Those words were wide enough to allow a developer to tell the decision-maker that it did not intend to return the buildings to their previous aviation-related uses for commercial reasons. The decision-maker would assess whether that stance was appropriate and reasonable in the circumstances. If the reasons were found to be genuine, as in the instant case, it would be open to the decision-maker to accept the developer's stance. Contrary to the tenants' submission, that did not mean that the entire planning system could be subverted or frustrated because a landowner would always be able to succeed in obtaining planning permission for demolition or change of use simply by asserting an intention not to continue its existing use. That argument ignored the discretion in the relevant planning policy, the fact that there were a range of other uses available that did not require planning permission, and the fact that the judge had specifically considered whether the landlord's reasons were substantial and genuine (see paras 43-44 of judgment).

Consideration of the Westminster case - Regardless of whether the balance of probabilities test in Westminster would be too stringent if it was applied by the planning authority considering the notional planning application, the judge had not applied it himself, Westminster considered. The hurdle he had set for the tenants was only that there needed to be a real likelihood of re-use for aviation-related purposes in the future rather than a bare possibility. That approach could not be faulted, and he had been entitled to conclude that there was no realistic prospect of the landlord reinstating aviation-related use if consent to demolish was refused. The likelihood of the desired use actually coming about had been a highly material consideration, Nottinghamshire CC v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 293 applied (paras 55-60).

Appeal dismissed

Chancery Division
Birss J
Judgment date
25 March 2019
References
LTL 26/3/2019 : [2019] 3 WLUK 429

Practice areas