Guignabaudet v Scottt-Moncrieff

A covenant in a residential long lease requiring consent for alterations to the arrangements of the demised premises is a general and flexible provision. Read in context, it applies to significant or substantial changes to the layout or arrangement of the relevant premises that may affect the landlord’s freehold reversion. It does not extend to minimal changes, such as placing movable items or hanging a picture. Excavating substantial quantities of earth to create a swimming pond, redistributing or removing the soil, and replacing part of a garden boundary with water materially altered the arrangements of the demised premises. The landlord’s consent was therefore required.

The appellant was the freehold owner and landlord of a basement or garden flat. The respondent, the tenant, proposed and then carried out works to create a substantial swimming pond in a garden included in the lease. The works extended across the boundary with an adjoining garden.

The lease required the landlord’s prior written consent, not to be unreasonably withheld, for alterations to the construction or arrangements of the demised premises. On a preliminary issue, the Central London County Court held that consent was unnecessary and dismissed the landlord’s claim. The issue on appeal was whether the works altered the arrangements of the demised premises.

1. Appeal allowed. The court unanimously held that the swimming pond works fell within the second limb of the alteration covenant, concerning the arrangements of the demised premises.
2. Sir John Chadwick considered that the construction limb raised a real difficulty. It was necessary to identify an existing construction which the works altered. The appeal did not need to be decided on that limb, and the court therefore left the question open.
3. The word arrangements was general and flexible. In the context of a residential long lease of a flat and garden, it protected the landlord’s freehold interest from significant or substantial alterations. It did not require consent for every minimal or ephemeral change. The relevant dividing line was whether something substantial or significant in the layout or arrangement of the premises had been altered.
4. The proposed works involved the excavation and removal or redistribution of about 34 cubic metres of earth. That was substantial enough to alter the layout of the garden. Further, the works crossed the common boundary: earth which could previously have supported a reinstated fence was replaced by a length of water, part of it two metres deep. A garden bounded in that way had altered arrangements within the covenant.
5. Lord Justice Wilson agreed. Lord Justice Lloyd also agreed, explaining that the first-instance judge had wrongly treated the ordinary garden as having no arrangement. The question whether the landlord’s withholding of consent was unreasonable remained to be addressed.

1. Court of Appeal (Civil Division): Allowed the appeal and held that the works altered the arrangements of the demised premises, so the landlord’s consent was required.
2. Central London County Court: HHJ Dight held on a preliminary issue that consent was not required and dismissed the landlord’s claim. The question whether consent had been unreasonably withheld did not arise.