R.F.W. Coppen & Ors v Bruce-Smith

Under Part II of the Landlord and Tenant Act 1954, a landlord relying on section 30(1)(f) must establish a firm and settled intention to carry out the proposed demolition, reconstruction or construction works and a reasonable prospect of doing so. Where planning permission may be required, the court should ordinarily make a practical appraisal of that prospect rather than finally determine hypothetical planning questions. The court must distinguish questions of statutory construction from the application of statutory language to facts. Breaking up and digging out tennis courts may be more aptly characterised as engineering or other operations than as demolition of buildings. A landlord cannot succeed by advancing a materially different redevelopment strategy on appeal.

The trustees of Thames Ditton Lawn Tennis Club sought a new tenancy of the club’s land and buildings under Part II of the Landlord and Tenant Act 1954. The landlord opposed the application under section 30(1)(f), relying on an intention to demolish the clubhouse, garage and tennis courts and redevelop the site.

The Kingston upon Thames County Court decided the preliminary issue in the landlord’s favour, holding that the proposed works did not require planning permission. The tenants appealed. The central issues were whether the works fell within the statutory concept of demolition and whether the landlord had a reasonable prospect of carrying them out.

1. Appeal allowed. The preliminary issue was answered in the tenants’ favour, with costs in the Court of Appeal and below, subject to the stated exception for the application to adduce further evidence. Leave to appeal to the House of Lords was refused.
2. Section 30(1)(f) requires a firm and settled intention to demolish or reconstruct the premises, or carry out substantial construction work, together with the inability reasonably to do so without possession. The phrase “firm and settled intention” reflects the construction in Bettys Cafes v Phillips Furnishing Stores [1959] AC 20, adopting the approach in Cunliffe v Goodman [1950] 2 KB 237.
3. Where the need for planning permission is uncertain, the court should normally avoid deciding the hypothetical planning question. The correct inquiry is whether the landlord has a reasonable prospect that permission is unnecessary or, if required, will be obtained. The burden rests on the landlord. This practical appraisal was taken from Gregson v Cyril Lord [1963] 1 WLR 41 and the meaning of reasonable prospect was stated in Cadogan v McCarthy & Stone Developments (16 May 1997).
4. The meaning of statutory language is a question of law, while its application to primary facts may involve fact and degree. On a general appeal from the county court, the Court of Appeal was able to perform that evaluative task. The contrary general limitation suggested in Romulus Trading Co v Henry Smith’s Charity Trustees [1990] 2 EGLR 75 was not accepted.
5. The proposed breaking up and digging out of the tennis courts was more aptly described as engineering or other operations under the Town and Country Planning Act 1990 than as demolition of buildings. The statutory context, including section 55(1A) and the Town and Country Planning (Demolition—Descriptions of Development) Direction 1995, reinforced that conclusion. The county court judge’s contrary construction was unsustainable.
6. Because the landlord’s proposed works would result in the loss of recreational facilities, and the landlord could not show a reasonable prospect of obtaining planning permission for that strategy, he could not establish the necessary firm and settled intention under section 30(1)(f).
7. The Court refused to entertain the landlord’s late respondent’s notice proposing reliance on a materially different strategy limited to demolition of the buildings. The landlord had deliberately pursued the wider strategy, supported by an undertaking, and the alternative had not been considered below.
8. The court expressed the view that, subject to the county court’s discretion, a relatively short new tenancy allowing review within the next ten years would be appropriate.

• Court of Appeal (Civil Division) allowed the appeal from the Kingston upon Thames County Court and answered the preliminary issue in the opposite sense.
• Kingston upon Thames County Court, before His Honour Judge Bishop, decided the preliminary issue in favour of the landlord on 20 January 1997.