Zarvos v Pradham & Anor

To invoke section 30(1)(g) of the Landlord and Tenant Act 1954, a landlord must establish two matters: a genuine bona fide intention to occupy the premises for the landlord’s own purposes, and an objectively reasonable prospect of bringing about that occupation by the landlord’s own act or volition. Where the first-instance reasons do not disclose whether the failure was one of intention, reasonable prospect, or both, the Court of Appeal should not reconstruct the decision on a permission application. Permission may properly be granted for the full court to determine the finding and its legal consequences.

This was a renewed application for permission to appeal from a decision of His Honour Judge Cowell in the West London County Court. The landlord sought to oppose renewal of a business tenancy by relying on section 30(1)(g) of the Landlord and Tenant Act 1954.

The landlord had previously operated a restaurant at the premises and asserted an intention to resume business occupation. The first-instance judge held against him, but it was unclear whether the judge found that he lacked a genuine intention or that he lacked a reasonable prospect of carrying out the proposed occupation. The central issue was whether that ambiguity justified permission to appeal.

Permission to appeal granted. Waller LJ gave the first judgment, and Pill LJ agreed.

1. Section 30(1)(g) of the Landlord and Tenant Act 1954 involves two distinct limbs. The landlord must prove a genuine bona fide intention to occupy the premises for the landlord’s own purposes. The landlord must also prove an objectively reasonable prospect of bringing about the occupation by the landlord’s own act or volition.
2. The landlord relied on his previous operation of a restaurant at the premises, the continued existence of the restaurant facilities, available banking support and equity in the property. The evidence concerning business plans and financing was limited and the profit forecasts were produced shortly before trial.
3. The first-instance judgment did not clearly identify whether the landlord was found not to have a genuine intention or instead to lack a reasonable prospect of carrying out that intention. The Court of Appeal considered it wrong to analyse the judgment and decide for itself what finding had been made.
4. If the first-instance judge had found no genuine intention, that would ordinarily be a finding of fact unlikely to be disturbed. If the judge had accepted a genuine intention but found that it could not be carried out, there was force in the submission that such a conclusion might not properly follow from the evidence. The ambiguity was material and required consideration by the full court.
5. The renewed application was therefore granted. The order recorded a three-to-four-hour estimate for the appeal.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1600, the renewed application for permission to appeal was granted by Waller LJ, with Pill LJ agreeing.
• West London County Court: His Honour Judge Cowell decided the matter on 9 May 2002 and held against the landlord on reliance upon section 30(1)(g) of the Landlord and Tenant Act 1954.
• Permission had previously been refused on paper by Robert Walker LJ, subject to renewal on notice.