Dogan v Semali Investments Ltd

For opposition to renewal of a protected business tenancy under the Landlord and Tenant Act 1954, section 30(1)(f), the landlord must establish a genuine intention comprising two elements: a fixed and settled desire to carry out the proposed works, and a reasonable prospect of being able to do so. The latter is a low planning threshold. A real, not merely fanciful, chance of obtaining permission is enough; probability and completion timing are not required. Earlier changes to the scheme do not defeat the intention if the evidence at trial shows a settled desire to implement the current proposals. On appeal, planning permission obtained after the trial may be considered and may confirm that the first-instance assessment was wrong.

The tenant operated a café in Unit 1, part of a building owned by the landlord. The tenant applied for a new business tenancy under Part 2 of the Landlord and Tenant Act 1954. The landlord opposed renewal under section 30(1)(f), relying on proposed redevelopment involving the adjoining units, an extension and associated access changes.

His Honour Judge Cotran, sitting in the Willesden County Court, held that the landlord had not established the statutory ground and made an effective declaration to that effect. The landlord appealed. The central issues were whether the landlord had a fixed and settled intention to carry out the current proposals and whether there was a reasonable prospect of obtaining the necessary planning permission.

1. Disposition. The appeal was allowed unanimously. The declaration made by the Willesden County Court was discharged, with any further directions left to be agreed between counsel.
2. Under section 30(1)(f) of the Landlord and Tenant Act 1954, the landlord’s intention had two ingredients: a fixed and settled desire to carry out the proposed works, and a reasonable prospect of being able to bring about the desired result.
3. The first ingredient was established. The board resolutions were capable of covering the refined proposals put forward by the planning expert. The fact that the landlord had advanced different proposals earlier did not defeat the intention. If the evidence at trial established the necessary current intention, earlier intentions were immaterial. On the evidence, the only proper conclusion was that the landlord had a fixed and settled desire to implement the refined scheme.
4. The second ingredient principally concerned the prospect of obtaining planning permission. The threshold was low. As explained in Gatwick Parking Services Ltd v Sargent [2000] 2 EGLR 45, the landlord needed to show a real, not merely fanciful, chance of permission, rather than probability. Timing was not the test. The judge had wrongly preferred his own assessment of the planning prospects to the expert evidence, and the foundation for rejecting that evidence was insufficient.
5. The inspector’s comments on the larger scheme did not make permission for the more restricted scheme unlikely. The later grant of planning permission strongly confirmed the Court of Appeal’s view, and could properly be taken into account on appeal, following Gatwick Parking Services Ltd v Sargent. The court did not separately determine the complaint that the trial had been conducted with undue hostility, although it accepted that this might partly explain the unsound substantive conclusion.

• Court of Appeal (Civil Division): On 4 August 2005, the appeal was allowed and the County Court’s declaration was discharged: [2005] EWCA Civ 1036.
• Willesden County Court: His Honour Judge Cotran held on 25 November 2004 that the landlord had not established the ground of opposition under section 30(1)(f) of the Landlord and Tenant Act 1954.