Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion S.A.

Consent to alterations may be withheld reasonably where the proposed works would breach, or potentially breach, a superior lease covenant and the freeholder has not consented. A tenant cannot establish unreasonable withholding of consent merely by pointing to earlier dealings or discussions where the evidence shows that the necessary superior consent was absent. A request made shortly before works are carried out does not provide a proper opportunity to consider consent. Summary judgment is appropriate where the defendant has no real prospect of successfully defending the claim and there is no other compelling reason for a trial.

The claimant was the head lessee and management company of a building containing flats. The defendant held underleases of two flats and installed air-conditioning units, condensers, pipework and related apparatus on the roof and chimney stack, some without consent.

The claimant brought a trespass claim and initially sought mandatory injunctive relief. After the defendant sold its underlease interests, the claimant sought damages. The defendant relied on an alleged implied representation and estoppel that consent to reasonable air-conditioning apparatus would not be unreasonably withheld or delayed. The claimant applied for summary judgment on the basis that its refusal was plainly reasonable.

1. Summary judgment. The claimant obtained summary judgment because the defendant had no real prospect of successfully defending the claim and there was no other compelling reason for a trial. Judgment was entered for the claimant, with damages to be assessed.
2. Superior lease covenant. The head lease prohibited alterations affecting the building’s external architectural appearance and alterations to the chimney stacks or chimney pots. Grosvenor, the freeholder, could consent to otherwise prohibited alterations, but was not required to consent reasonably. The claimant was entitled to take account of the risk that consenting to the apparatus would place it in breach of the head lease.
3. Reasonableness of withholding consent. Grosvenor had expressly excluded air-conditioning from its 2006 approval and had not consented to the later apparatus. Its subsequent view that the units were too large and visible, and that a comprehensive roof plan would be required, was not unreasonable. In those circumstances, the claimant’s refusal to consent to the erection or retention of the apparatus could not realistically be characterised as unreasonable.
4. Opportunity to consider the request. The defendant installed further units only days after requesting consent. It therefore could not say that the claimant had been given a proper opportunity to consider the proposed works. The earlier unauthorised works were also carried out in disregard of the freeholder’s express conditions.
5. The alleged estoppel did not assist the defendant. The history showed a continuous acceptance by the defendant and its advisers that Grosvenor’s consent was as crucial as the claimant’s consent. The issue of delay did not arise because the claimant had refused consent by commencing proceedings and had reaffirmed that position subsequently.

The judgment records that an earlier summary judgment application was refused by Deputy Master Mark on 11 November 2009, with permission for the defendant to amend its defence and counterclaim. The present High Court application was subsequently granted.