British Waterways: protecting an existing planning use
Westminster City Council v British Waterways Board [1985] AC 676 draws an important distinction between protecting a use of land and protecting the person who happens to occupy it.
The judgment also explains why the actual activities on a site matter more than a convenient label such as ‘council depot’. It arose in business-tenancy proceedings, rather than a planning appeal.
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- Neutral citation
- [1985] AC 676
- Court
- House of Lords
- Judgment date
- 31st October 1984
- Judge
- Lord Fraser of Tullybelton, Lord Wilberforce, Lord Scarman, Lord Roskill and Lord Bridge of Harwich
A depot at Paddington Basin
The council occupied premises at North Wharf as a depot. British Waterways, the landlord, wanted possession for business purposes associated with a proposed marina and opposed the grant of a new tenancy.
The proposed change required planning permission. The council said that it would refuse permission because it wanted to preserve the street-cleansing depot. The court had to assess the landlord’s reasonable prospect of obtaining permission, on the statutory assumption that the landlord would be entitled to possession.
The House of Lords dismissed the council’s appeal. It did not itself grant planning permission.
Identify the activities, not just the occupier
The established use involved a mixture of workshops, offices, stores, staff facilities and vehicle parking. Calling it a street-cleansing depot did not mean that only the council could carry on that planning use.
A range of similar undertakings might use the premises without a material change, depending on their actual activities. The purpose for which vehicles were used after leaving the site did not determine the planning use of the depot.
The court also warned against treating activities within a planning unit as ancillary to operations taking place outside that unit. Read this alongside Burdle when identifying the relevant planning unit and its uses.
Would refusal actually preserve the use?
Preserving an existing use can be a legitimate planning objective. But where refusal of an otherwise acceptable use rests solely on preserving another use, the court said there must at least be a balance of probability that the land would effectively be put to the use being protected.
On the assumed return of possession to British Waterways, refusing the proposed use would not ensure that the council’s depot resumed. Other uses within the established planning use remained possible.
This is not a universal rule that every fallback must be more likely than not. The judgment addressed the particular argument that preserving one competing use was the sole justification for refusing another.
The practical distinction
Ask what use is being protected, how it is properly characterised and whether refusing the proposal can realistically achieve that objective. Protecting a particular occupier from losing its premises is not automatically a planning reason.
Great Portland Estates addresses related questions about planning purposes. It is a different judgment, reported at AC 661, and should not be confused with this case at AC 676.
Read the British Waterways judgment
Gold Members can read the complete House of Lords judgment and order below. The judgment date is 31st October 1984; the law report is dated 1985.
British Waterways Case Law Page Updated: 12th September 2026