The case of Messenex Limited v Lanark Square Limited[2024] presents both landlords and tenants with a few illustrations of how not to run an application for consent to alterations. 


The Tenant held a two hundred year lease of a mixed use building in Docklands, London, and made two separate applications for a licence to alter in respect of two sets of works for which it had already obtained planning permission.  The first was to add three stories to the four storey block, adding a total of nine flats to the building.  The second – a smaller project – was to reconfigure the ground floor of the building as four new residential units in place of the existing offices.   

After prolonged negotiations, the Landlord issued engrossments of the licences to alter, however the parties continued to discuss how the Tenant would be permitted to use the Landlord’s retained estate for the works and what compensation it would pay and as a result the licences were never actually completed.  In parallel, the parties – between the CEOs – negotiated for the sale of the Tenant’s interest in the building back to the Landlord for over ten million pounds.  This deal fell through. 

By November 2022, almost three years after the initial approaches had been made, and with the deadline for implementing the planning permissions approaching, the Tenant issued Part 8 proceedings for a declaration that the Landlord had unreasonably withheld consent, contrary to section 19(2) of the Landlord & Tenant Act 1927.

The Judgment

The Tenant lost.  The court held that the Tenant’s failure to produce a structural engineering report, despite it not being required by the licences, was fatal to both the applications for consent.  A reasonable landlord would have been anxious about the structural integrity of the building and have required expert assurance on the point, even had it apparently agreed otherwise in the draft licences.

The Landlord also refused consent on the basis that the scaffolding that the Tenant would need to erect on the Landlord’s retained estate in order to undertake the works would constitute a trespass.  The court held that this was an invalid reason:  the correct approach was for the Landlord to require compensation.  Much of the delay, after the engrossed licences had been issued, was caused by the negotiations as to how the works would be carried out, rather than whether the works themselves should be carried out. 

Finally, the Tenant owed substantial service charge arrears and the Landlord had made it clear that it would not give consent until the Tenant had settled these arrears. This was not a valid reason for the Landlord to refuse consent under the 1927 Act.  The judge had to decide what to do when there were two bad reasons for the Landlord withholding consent and one reason he felt to be reasonable. Following recent court of appeal guidance, he concluded that the good reason was sufficient reason for the withholding of consent to both applications. 


When approached for a licence for alterations, landlords must be careful to only advance reasons that can pass the ‘reasonable landlord’ test and avoid invalid reasons that might embolden the tenant in making an application to the court for a declaration of unreasonableness.  In this case, the Landlord’s demand that all service charges be paid, coupled with the imminent planning permission deadline, might have had a different outcome before another judge. 

Despite the concession given by the 1927 Act to tenants that conditional consent must not be unreasonably withheld, the balance of power still lies with the landlord.  It is for the tenant to prove that the landlord’s state of mind led it reasonably to withhold consent.  Further that the test is not whether the actual landlord  acted reasonably by refusing consent but whether the hypothetical landlord would have reasonably withheld consent. 

Tenants should therefore make sure that they have all the necessary documentation ready before approaching the landlord or deal with further documentation in the licence to alter.  Applying for planning permission is a different exercise from applying for consent for alterations from a  landlord and the landlord’s potentially reasonable requirements should be considered as far as possible. 


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