It is often said that, opposing renewal under paragraph (g) of section 30 (1) of Part II of the Landlord and Tenant Act 1954 on the ground that the landlord intends to occupy the premises for the purposes of a business to be carried on by it, is a relatively straight forward ground upon which a landlord can succeed in opposing renewal. Since the decision of S.Franses v Cavendish Hotels there has been much speculation about the extent to which that decision impacts upon the landlord’s ability to oppose renewal on ground of opposition under paragraph (g).

However, it must not be forgotten that the “conditional intention” test identified by the Supreme Court in S.Franses does not override or undermine the requirement for a landlord to establish the appropriate intention, which involves both a subjective and objective element.

By way of reminder:

  • the subjective element involves an intension on the part of the landlord to occupy and run a business from the subject premises. To use the language of Asquith LJ in Cunliffe v Goodman [1950] it is necessary for a landlord to show that they have moved “out of the zone of contemplation into the valley of decision”. Whilst the project envisaged by the landlord need not be fully developed, their intention must be “firm and settled”.

  • the Objective element requires that the landlord’s intention is rationally held; that is to say it must be capable of achievement. Typically, a landlord needs to show that there is no practical or legal impediment to their proposed scheme e.g. there is sufficient funding in place, no insurmountable issues with planning permission etc.

In the recent decision of Macey v Pizza Express [2021] EWHC 2847, Ch the judge at first instance was not convinced that the landlord, Mr Macey, held a sufficiently formed intention under ground (g) and ruled that the ground was not made out. The judge placed particular weight on the landlord’s failure to (i) disclose relevant evidence to support his claim before the disclosure deadline; (ii) incur any significant expenditure to progress his stated intention to run a wine bar from the premises; and (iii) enforce the tenant’s repairing covenants which would have enabled the landlord to start trading from the premises on the determination of the tenancy. The case is also of some interest to the extent that the judge accepted the tenant’s submission that he was entitled to draw adverse inferences from the failure of the landlord to call witnesses who ought to have been called in support of his case.

The landlord’s subsequent appeal to the High Court focused mainly on what was alleged to be a flawed approach to the analysis of intention in the court below. However, Marcus Smith J was satisfied that the county court judge was entitled to reach the decision he did based on the evidence before him.

Lewis Silkin LLP acted on behalf of the successful Defendant, Pizza Express.