Messenex Property Investments Limited v Lanark Square Limited

Under Landlord and Tenant Act 1927, section 19(2), an application for consent to alterations need not follow a prescribed form. It is sufficient that the landlord knows consent is sought and that the proposed works are sufficiently clear. Where consent is withheld rather than expressly refused, the proposal may develop until proceedings are issued, and reasonableness is judged at that date.

The landlord must identify the actual reasons influencing its decision. Those reasons are assessed subjectively as to their existence and objectively as to their reasonableness. Relevant property interests may include the effects of implementing the works on retained adjoining land. A decision may remain reasonable where some reasons are invalid but independent reasonable reasons would themselves have justified withholding consent.

Messenex, the tenant of a long lease of a mixed-use building, sought declarations that Lanark, its landlord, had unreasonably withheld consent to rooftop extensions and ground-floor conversion works. The proposed works required alterations to the demised building and, during implementation, use of retained parts of the estate.

The court considered the scope and development of the applications, Lanark’s reasons for withholding consent, and whether those reasons were reasonably held. The principal issues concerned structural drawings, possible trespass or use of retained land, undertakings for costs, and alleged lack of clarity in the proposals.

1. Scope of application. Section 19(2) of the Landlord and Tenant Act 1927 and clause 3(f) of the Lease prescribe no formal application process. The tenant must make it clear that consent is sought and identify works with sufficient clarity. An application may develop up to the commencement of proceedings where consent has been withheld. The reasonableness of the landlord’s response is assessed by reference to the facts then existing.
2. Reasons and reasonableness. The actual reasons influencing the landlord are identified subjectively. Their reasonableness is then assessed objectively. The landlord need not prove that its conclusions were correct if they were conclusions which a reasonable landlord could reach in the circumstances. The tenant bears the burden of showing unreasonable withholding.
3. Property interests and implementation. A landlord may take into account the practical implementation of the proposed works, including effects on retained adjoining land and requests to exercise rights which the tenant does not possess. The distinction between the works and their implementation is not decisive. Here, however, the potential trespass and the demand for service-charge payment were not reasonable grounds at the date of proceedings because the additional rights had been agreed and the service-charge dispute was separate.
4. Application to the reasons advanced. It was reasonable to require preliminary structural engineer’s drawings before consent to substantial rooftop additions, particularly where structural concerns had already been identified. The alleged lack of clarity was not a good reason because the parties understood the proposal by February 2022. The refusal to give an unconditional undertaking for reasonable costs was potentially a good reason.
5. Overall decision. Applying No.1 West India Quay (Residential) Limited v East Tower Apartments Ltd, the court asked whether the decision itself was reasonable, rather than whether every reason was reasonable. The structural-drawing and costs reasons were self-standing and reasonable. The declarations sought by Messenex were refused.