Warwickshire Aviation Ltd & Ors v Littler Investments Ltd

For opposition to a new business tenancy under section 30(1)(f) of the Landlord and Tenant Act 1954, the landlord must show both a genuine intention to carry out the relevant works and a reasonable prospect of doing so. Reasonable prospect is a value judgment meaning a real chance, not a fanciful one. It should not be converted into a fixed percentage.

Where planning permission is required, the court considers a notional application on the assumption that the tenant has left and the landlord has possession. A planning policy supporting retention of an existing use may contain a discretion. In assessing that discretion, the decision-maker may consider the landlord’s genuine commercial intention and the realistic likelihood of the use continuing or being resumed. The appeal was dismissed.

The appellants were tenants of premises at Wellesbourne Mountford Airfield. They sought new fifteen-year tenancies under Part II of the Landlord and Tenant Act 1954. The landlord opposed renewal under section 30(1)(f), relying on an intention to demolish the premises.

HHJ Richard Williams, sitting in the County Court at Birmingham, found that the landlord intended to demolish the buildings and had a reasonable prospect of obtaining planning permission. He dismissed the claims. The tenants appealed on grounds concerning the construction of the planning policies, the neighbourhood plan, alternative uses, the landlord’s intentions, and the proper approach to Westminster v British Waterways Board. The central issue was whether the landlord had established a reasonable prospect of carrying out the intended demolition.

The appeal was dismissed. The first-instance judge had correctly found that the landlord satisfied section 30(1)(f) of the Landlord and Tenant Act 1954.

1. Statutory test. The provision requires proof of both a subjective intention to demolish or reconstruct and a reasonable prospect of bringing that intention about. The landlord’s intention was undisputed. The issue was the prospect of obtaining planning permission.
2. Reasonable prospect. The phrase means a real chance rather than a merely fanciful one. It is a value judgment and must not be translated into a fixed percentage. The experts’ numerical estimates were evidence of their opinions, not a legal scale.
3. Notional planning application. The application had to be considered on the assumption that the tenants had vacated and the landlord had recovered possession. The tenants’ existing businesses and their economic importance were therefore not relevant to the statutory question.
4. Planning discretion. Policy AS.9 of the Development Plan was qualified by introductory wording conferring a discretion as to the extent to which its retention objective applied and whether it was reasonable and appropriate for the developer to contribute to that objective. Section 38(6) of the Planning and Compulsory Purchase Act 2004 did not alter that conclusion.
5. Future use and intention. It was open to the planning decision-maker to consider objectively whether the buildings were likely to be reused for aviation if demolition permission were refused. Genuine and substantial commercial reasons could make the landlord’s stated intention relevant. The judge was entitled to find no realistic prospect of aviation reuse and that alternative uses were available.
6. The neighbourhood plan did not materially alter the assessment on the evidence. The judge was not deciding the planning application itself. He was assessing the prospect of success on the evidence before him.
7. Westminster v British Waterways Board. The balance-of-probabilities approach discussed in that case was not the test the judge had to apply. The relevant question was whether there was a real likelihood of future aviation reuse, rather than a bare theoretical possibility. The approach was consistent with Nottinghamshire CC v Secretary of State for the Environment.
8. Permission to raise an additional argument concerning the timing of demolition was refused because the point had not been advanced at trial and it would have been unfair to allow it on appeal. The court declined to determine an unnecessary ground concerning structures remaining on Take Flight’s site.

• High Court (Chancery Division): Mr Justice Birss dismissed the appeal from the order of HHJ Richard Williams dated 25 June 2018.
• County Court at Birmingham: HHJ Richard Williams dismissed the tenants’ claims for new tenancies after finding that the landlord had established the ground in section 30(1)(f) of the Landlord and Tenant Act 1954.