Summary

A judge had been entitled to find that a tenant had no reasonable prospect of defending a claim for trespass made by a head lessee concerning the tenant's installation of air-conditioning units on the roof of a block of flats. The freeholder and head lessee would not have consented to the installation of the units and the tenant had no right under the lease to place anything on the roof.

Facts

(1) The underleases held by S did not confer any right on the tenant to place anything on the roof, even with E's consent. S had to rely on proprietory estoppel. It would therefore be artificial, inappropriate and unjust to determine the position as if there had been a right in the underlease for S to place equipment on the roof subject to a qualified right for E to refuse consent. If there had been such a right, then the reasonableness of E's refusal would have been relevant. In the circumstances, S's argument that the court should only take into account the matters that were present in E's mind at the time of refusal had to fail (see paras 33-36, 53 of judgment). (2) E was entitled to take a cautious line regarding the attitude of the freeholder. If the freeholder did not confirm that S's proposals would not breach the head lease covenant, then E could not be expected to put itself at risk by giving consent to something that might expose it to a claim for breach of covenant. E did not therefore have to show that the proposed works would give rise to a breach of the head lease covenant (para.37). (3) The correct legal test required a focus on what the freeholder's attitude would have been if E had asked for its consent. The evidence showed that if E had asked for the freeholder's consent it would have been by no means a formality as to whether consent would be granted, or, if it was given, in what way and on what terms. It had already voiced concerns about the size and visibility of the apparatus and the impact of consent in relation to future proposals that might be made in respect of other flats. There was no reason to suppose that if E had asked for approval its response would have been any different. The judge was entitled to conclude that S had no real prospect of successfully defending the claim (paras 49-53).

Held

The appellant underlessee (S) appealed against a decision ((2010) EWHC 1725 (Ch)) that the respondent head lessee (E) was entitled to summary judgment on its claim for trespass. E held the head lease for a block of flats. The head lease contained a covenant that E would not alter the external appearance of the building. S held an underlease for two of the flats. The leases provided that S could not make any alterations or additions without the prior written consent of E and the freeholder. E had given S consent to place some air-conditioning units on the roof, but later withdrew its consent and told S to remove the equipment. S wished to install new equipment and approached the freeholder directly. The freeholder stated that it would not consent to the installation of new apparatus as it was too large and might cause problems if other leaseholders wanted to install similar equipment in the future. S failed to remove the equipment and added more units without consent. S submitted that (1) E had unreasonably refused consent, and the reasonableness of its refusal had to be determined by what was in its mind at the time, not by subsequent evidence of the freeholder's attitude; (2) E could not reasonably rely on the freeholder's opposition unless it could show that placing the apparatus on the roof would be in breach of the covenant in E's head lease.