Platia v Thermatic Building Services Ltd. [2005] EWCA Civ 403

Case No B2/2004/2685Case No B2/2004/2685(A)Case No B2/2004/2686[2005] EWCA Civ 403
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER PHILIP SAPSFORD QC)
Venue Royal Courts of JusticeDate Friday, 18th March 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE NEUBERGER
Between
CALOGERO PLATIAApplicant-v-
Between
THERMATIC BUILDING SERVICES LIMITEDRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR ZACHARY BREDEMEAR (instructed by Bar Pro Bono Unit) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE NEUBERGER:

[1]This is an application for permission to appeal against a decision of Mr Recorder Philip Sapsford QC, who made an order on 7th June 2004 denying Mr Calogero Platia, the applicant, a new tenancy of premises at 34 Broadway Market, London E8, on the grounds set out in paragraph (f) of section 30(1) of the Landlord and Tenant Act 1954. In other words, he was satisfied that on the termination of the applicant's tenancy, the landlords, Thermatic Building Services Ltd, intended to carry out works of sufficient magnitude to satisfy that paragraph and that they could not carry out those works without obtaining possession of the premises.[2]The applicant did not attend and the landlords were represented by counsel Miss Windsor. In her skeleton argument, she set out accurately the law, recited the facts which the landlords expected to establish and said that in those circumstances the application for a new tenancy made by the applicant should be dismissed. Alternatively, if the Recorder was not satisfied that a new tenancy could be denied, she said that he should grant a new tenancy with a redevelopment break clause.[3]In the Recorder's judgment, of which I have been provided with an approved copy this morning, he found, as I have mentioned, in favour of the landlords. The applicant was not in court, as I mentioned, but a Mr Shuter sought permission to appeal on his behalf, which the Recorder, as he was entitled to do, refused.[4]When a landlord wishes to deny a new tenancy to a tenant under paragraph (f) of section 30(1) of the 1954 Act, the onus is on him, through credible evidence, to establish the various components, in particular that he has a sufficient intention to carry out works, that the works are sufficiently substantial, that the works can be carried out on the balance of probabilities, and that they will be carried out within a reasonable time.[5]The potential impediment in the landlord's way upon which Mr Bredemear -- who appears pro bono for the applicant today and who, particularly in light of the very short time available to him, has presented the case very clearly and very fairly and to whom I am grateful -- focuses on the requirement for conservation area consent, which was required in relation to the landlord's development. The landlord had planning permission. The landlord called chartered surveyors to establish his ability and intention to carry out the work, to demonstrate that the work was of sufficient magnitude and to establish that it could not be carried out without obtaining possession against the applicant.[6]In relation to conservation area consent,

the judge said this:

"The third witness, Sarah Griffiths who had not previously provided a witness statement, I permitted Miss Windsor [counsel for the landlord] to call to deal with one outstanding issue of which she felt it was important that the Court should be aware. That was the question of conservation, because, of course, 34 Broadway Market, London E8, is in a conservation area of London. She submitted a planning application and a conservation area consent application, firstly in 2002, and she followed it up further in November of 2003. But she has satisfied me that the Defendants are expected to receive the conservation area consent application. At the moment it seems to be held up in administration but she cannot think of any impediment to the start of redevelopment."
[7]Before me today are two letters from Hackney London Borough Council, the relevant authority for conservation area consent purposes, dated 19th August 2004 and 16th March 2005. The effect of those two letters is to suggest, with some supporting detail, that at the time of the hearing, namely 7th June 2004, the application for conservation area consent, although it had been made, had not been validly made and had been in fact withdrawn and was in the process of being renewed. It also recorded that, to quote from the earlier letter:
"... it could be considered reasonable for someone who has planning permission to believe that conservation area consent would be granted."
That letter records that conservation area consent was in fact granted on 26th October 2004.[8]Two points are made by Mr Bredemear. The first is that, as is clear from the rather convoluted provisions of section 64 of the 1954 Act, the tenancy subject to the present application ended on or about 21st September 2004. In those circumstances, it is said that the landlord would not have been ready to carry out the works because he would not have been able to redevelop for another five weeks, owing to the absence at the time of conservation area consent.[9]Secondly, it is said that the judge was misled by the evidence of Ms Griffiths, which he recorded in the words "it seems to be held up in administration". Had he not been misled it is said that he might have not accepted the landlords' case, and in those circumstances a different result might have obtained.[10]So far as the first point is concerned, it is not a requirement of section 30(1)(f) of the 1954 Act that the landlord must be ready with his bulldozers or other machinery to start carrying out the work the moment the tenancy is due to expire. It would be an impracticable and overtechnical interpretation of the section if one were to interpret it in that way. Anyway, the landlords could have gone in on the day the tenancy came to an end, 21st September, and started to carry out work in anticipation (correctly, as it turns out) of conservation area consent being granted very shortly thereafter.[11]So there are two reasons why I reject the first argument. The first is that it depends on what is an unreasonable construction of section 30(1)(f), which does not require the landlord to be ready in all respects to go in the very moment the tenancy expires. Secondly, even if that were the correct construction, the absence of conservation area consent would not have been prevented the landlords being in precisely that position, although they would have had to have been careful as to what work they carried out.[12]As for the second ground, I fear from the applicant's point of view that that also must be rejected. The essential question for the judge was whether or not, on the balance of probabilities, conservation area consent for the works would be granted within a few months of the hearing. He came to the conclusion that it would. An appeal on that issue is extremely unattractive for the obvious reason that he was right, as we now know, and conservation area consent was granted on 26th October.[13]However, as Mr Bredemear says, that is not necessarily the beginning and the end of it. If a judgment is obtained by perjured evidence, it would be an affront to the proper respect which is due to the administration of justice, for the Court simply to ignore it and to refuse permission to appeal in a case such as this, although the appeal may be ultimately unsuccessful.[14]However, it seems to me that the essential feature in the correspondence, and which has been very properly drawn to my attention by Mr Bredemear, is in one sentence in the earlier letter of 19th August which I have already read out. Even on the new evidence obtained from Hackney, the view expressed, which is the central view, namely whether or not it was likely that conservation area consent would be granted, was right or at least reasonable. The judge was satisfied that the defendants are expected to receive the conservation area consent application. That view was one which "it could be considered reasonable for someone who has planning permission to believe".[15]Quite apart from this, as Mr Bredemear accepts, again very fairly, the judge's observation that the conservation area consent "seems to be held up in administration"(a) could be a reference to the administration of the architects who employed Ms Griffiths,(b) could have been a misunderstanding between him and Ms Griffiths on what was anyway not a central question, or(c) could have been her honest mistake.[16]In my judgment, on the evidence I have at the moment, it would be quite unfair and inappropriate to conclude that there was perjury. If it was a central point and there was a little bit more evidence to suggest that it was dishonest, I would have thought it right to adjourn this application to enable the issue to be investigated further. However, on this second issue I am afraid, from the applicant's point of view, I have come to the conclusion that permission must be refused. First, because the central matter which the judge found, namely that the conservation area consent would be obtained, was(a) correct, as events turned out,(b) a reasonable view to hold according to the very evidence upon which the applicant now seeks to lie. Secondly, quite apart from this, because there is insufficient evidence even to begin to suggest that there was perjury in this case.[17]In those circumstances, with gratitude to Mr Bredemear for the way in which he has presented this case, I must refuse the application.

ORDER

Applications for permission to appeal refused. (Order not part of approved judgment) ______________________________