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Lawbite - Reasonable prospect of development taking off at airfield

  • United Kingdom
  • Litigation and dispute management
  • Real estate litigation

09-04-2019

Warwickshire Aviation Ltd & 6 Ors v Littler Investments Ltd [2019] EWHC 633

Tenants of an airfield recently failed in their appeal to the High Court to show that their landlord wasn’t able to oppose new leases being granted to them pursuant to the Landlord and Tenant Act 1954 (“1954 Act”).

The landlord, the Littler family, had owned the airfield since before World War II and now wanted to maximise the value of the site as it only generated a modest income as an airfield. It served notices to terminate the tenancies and opposing new ones on the ground that it intended to demolish the buildings and promote the site for residential development. 

Each of the tenants had oral monthly periodic tenancies which could only be terminated in one of the ways set out in the 1954 Act.  Littler relied on ground (f) of the 1954 Act which required that it demonstrate an intention to demolish/reconstruct the premises and also that it had a “reasonable prospect” of delivering upon that intention.

The tenants argued that the landlord couldn’t make out that it had a “reasonable prospect” of obtaining the planning permission necessary to carry out the redevelopment works as the local authority’s stated development plan was to retain and support aviation-related facilities at the airfield.  They submitted that "reasonable prospect" meant a greater than one in three chance of obtaining planning permission.

The County Court did not agree and its decision was upheld by the High Court.  The High Court agreed with the Judge that:

  • To give a percentage figure was not helpful as the words “reasonable prospect” spoke for themselves;
  • The development plan conferred a discretion on the decision maker not a mandatory obligation to retain airfield use;
  • When considering a planning application for use of land for a purpose which is not the local planning authority’s preferred use (here as allocated in the plan), a material consideration will be the likelihood of the land actually being used for the preferred use.  In this case the landlord did not wish to use the land for aviation-related use if consent for demolition was refused. Planning control could not be used to force the landlord to reinstate aviation use;
  • In any event there were alternative uses for the land which did not require planning permission;

Given the above, the landlord had established a reasonable prospect of obtaining permission to demolish and the appeal was dismissed.

Key Points

  • The test of “intention” in ground (f) cases requires the court to review the landlord’s subjective intention – what does it intend to do – and its objective intention – what is the likelihood of it being able to do it. This case is an interesting illustration of these two elements and how they can intertwine
  • It is also useful guidance as to how land that is allocated within a local plan might be treated by the court for the purpose of the test of intention. The wide discretion conferred on the local planning authority was a material factor and one which could feature in many similar cases

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