Landlord and Tenant Act 1954 – Business tenancy – Renewal – Grounds of opposition – Respondent landlord serving notice on appellant tenant under section 25 of 1954 Act to terminate business tenancy without grant of new one – Respondent relying on intention to demolish and reconstruct within section 30(1)(f) – County court dismissing appellant’s application for new tenancy – Whether intention of landlord to be established as at date of hearing or earlier date of section 25 notice – Appeal dismissed
The appellant was the tenant and the respondent was the landlord under a lease of business premises in London SE25 which was protected as a business tenancy under the Landlord and Tenant Act 1954. In June 2013, the respondent gave notice to the appellant under section 25 of the 1954 Act to terminate the tenancy on the expiry of its contractual term; the notice indicated that the respondent opposed the grant of a new tenancy on the ground in section 30(1)(f) of the 1954 Act, namely that it intended to demolish and reconstruct the property on the termination of the current tenancy. The appellant applied to the county court for the grant of a new tenancy and the respondent opposed that application.
The application for a new tenancy was dismissed in the county court. The judge held that, while the respondent did not have the necessary intention to demolish and reconstruct at the date when it served its section 25 notice, it was able to establish such an intention by the date of the hearing, which was the relevant date for that purpose.
The appellant appealed. He argued that, since the amendments made to the 1954 Act by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003/3096, the relevant date at which the landlord’s intention had to be established was not the date of the hearing but, contrary to the widely held view followed by the county court judge, the date when it served its notice determining the contractual term of the current tenancy under section 25. He submitted that the change in the wording of section 25(6), requiring the landlord’s notice to state the grounds on which it “is opposed” to the grant of a new tenancy rather than whether it “would oppose” such a grant, indicated that those grounds now had to exist at the date of the notice.
Held: The appeal was dismissed.
The change in wording in section 25 of the 1954 Act was precipitated by the abolition, under the amendments made by the 2003 Order, of the procedure for service of a counter notice by the tenant. The old section 25(6) used the conditional tense, “would oppose”, for the case where the landlord was waiting to see whether or not a counter notice would be served stating the tenant’s unwillingness to give up possession. Once the counter notice provisions fell out of play, there was no need for the conditional tense. That was the sole purpose of the amendment and there was nothing to indicate that parliament intended to revise the settled law as to the time at which the landlord had to demonstrate the intention for the purposes of section 30(1)(f).
It was noteworthy that the 2003 Order made express reference in its preamble to the consultation material that had preceded it, most of which made extensive reference to the abolition of the counter notice procedure but none of which contained anything to suggest that the previously understood position as to the date for establishing a landlord’s intention under section 30(1)(f) was to change. There was nothing in the new language itself that required the landlord to have in place at the date of the notice all the elements that would enable it to prove that its intention was, at that time, of a kind that fulfilled the requirements of section 30(1)(f).
The new language required the landlord only to state whether it was opposed to the grant of a new tenancy and on which section 30 ground it intended to rely. The procedure under the Act then required the landlord to make good its opposition at the date of the hearing. The same meaning of section 30(1)(f) applied whether the application to the court was triggered by a section 25 notice or a section 26 request by the tenant. Either way, the purpose of the notice of opposition was to perform the function of a pleading to inform the tenant of the case to be met at trial and to prevent him from being taken by surprise as to the grounds of opposition. Since section 30(1)(f) required the landlord to prove its intention at the date of the hearing, there was no practical reason why it should also be required to prove that it held that intention, with a reasonable prospect of being able to bring it about, at the date of service of its notice under section 25. The relevant date at which the landlord had to establish its intention was that of the hearing: Cunliffe v Goodman [1950] 2 KB 237; (1950) 155 EG 202 and Betty’s Cafés Ltd v Phillips Furniture Stores Ltd [1959] AC 20; (1958) 171 EG 319 applied.
Manjit Gill QC and Richard Alomo (instructed by Haider Kennedy) appeared for the appellant; Adrian Williamson QC (instructed by direct access) appeared for the respondent.
Sally Dobson, barrister
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