Santander UK Plc LPC Estates Ltd

For permission to appeal to be granted, the applicant must show a real prospect of overcoming binding authority or establish another compelling reason for an appeal. A pending Supreme Court appeal on a related issue does not, without more, create that prospect where the issues are materially different. Under Landlord and Tenant Act 1954, section 30(1)(f), a landlord may rely on a genuine intention to carry out works through a building lease, even where the lease structure was chosen to avoid the statutory obstacle to redevelopment. The landlord need not carry out the works itself.

Santander UK plc, the tenant, renewed its application for permission to appeal against a decision of Recorder Cheryl Jones dated 28 February 2018. The dispute concerned whether LPC Estates Ltd had established the requisite intention under section 30(1)(f) of the Landlord and Tenant Act 1954 to carry out works requiring possession.

The tenant relied on the pending Supreme Court appeal in S Franses Ltd v Cavendish Hotel (London) Ltd, arguing that the present appeal should await its determination. The central questions were whether the Court of Appeal authorities in PF Ahern and Sons Ltd v Hunt and Spook Erection Ltd v British Railways Board could be distinguished, and whether the pending Supreme Court appeal supplied a sufficient prospect or other compelling reason for permission.

1. Permission refused. The court held that there was no real prospect of persuading the appeal court that PF Ahern and Sons Ltd v Hunt or Spook Erection Ltd v British Railways Board was distinguishable on the facts. In both cases the landlord had a firm intention that works would be carried out, although the building lease was selected to overcome the difficulty created by section 30(1)(f). The same principle applied here.
2. The court rejected the submission that the works had to be carried out personally by the landlord. Binding Court of Appeal authority, supported by Gilmore Caterers v St Bartholomew's Hospital Governors, established that proposition. The fact that the works would be carried out by the proposed tenant did not materially distinguish the case.
3. The requisite intention was assessed at the date of trial. The fact that the landlord decided to undertake the works only after they were proposed by the new tenant did not prevent the existence of the necessary intention at that date.
4. The pending appeal in S Franses Ltd v Cavendish Hotel (London) Ltd concerned a substantially different issue: works undertaken only, or only insofar as necessary, to satisfy ground (f), without an independent commercial purpose. The present case concerned a landlord with a genuine commercial objective of enhancing rental and capital value, using a building lease to avoid the statutory obstacle. The pending appeal therefore did not provide a sufficient prospect of success or another compelling reason.
5. Derby v Weldon did not assist. There, the pending House of Lords appeal was directly relevant to the issue before the court. That was not so here.

• High Court (Chancery Division): renewed application for permission to appeal refused.
• Recorder Cheryl Jones: decision dated 28 February 2018; the citation was not stated in the judgment.