Matthew Blake Jacobs v Chalcot Crescent (Management) Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 09 February 2024 |
| Neutral Citation | [2024] EWHC 259 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH-2023-000140 |
[2024] EWHC 259 (Ch)
Mr Justice Fancourt
Case No: CH-2023-000140
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Tom Morris (instructed by Memery Crystal) for the Appellant
Simon Williams (instructed by the Respondent) for the Respondent
Hearing date: 22 January 2024
APPROVED JUDGMENT
This judgment was handed down via remotely at 10.00 am on 9 February 2024 by circulation to the parties or their representatives and by release to the National Archives.
This is an appeal against an order of HHJ Hellman (“the Judge”) made in the County Court at Central London on 8 June 2023. The Judge declared that the defendant company had not unreasonably withheld its consent to alterations to Flat 4, 46 Chalcot Crescent, London NW1 (“the Flat”) made by the claimant lessee. The Judge further declared that the works were therefore a breach of the covenant in the lease not to make such alterations without consent of the lessor (not to be unreasonably withheld). The Judge dismissed the claimant's claim for a declaration that consent had been unreasonably withheld.
The claim and counterclaim were tried between 21–23 November 2022 with oral closing submissions over a further day on 1 December 2022. The Judge heard evidence from the claimant, Mr Jacobs, from Professor Schehtman and Ms Simone Schehtman, directors of the defendant company, and from Mr Levy, the building surveyor retained by the defendant company to advise it on the application for consent. The Judge handed down a detailed and carefully considered judgment on 10 January 2023.
Permission to appeal on 4 grounds was granted by Miles J on 26 September 2023, with the application for permission to appeal on a further ground (Ground 3) adjourned to the hearing of the appeal.
The grounds of appeal are (in summary):
i) It was not open to the Judge to find for the defendant on the only basis that he did (reasonable concern about fire damage to the structure of the building) because that distinct basis of objection to the alterations had not been pleaded, nor had it been fairly raised or addressed as a ground of refusal at the trial.
ii) The Judge was wrong to conclude that the defendant did in fact withhold consent on that ground, which was a conclusion that was not supported by the evidence and was a finding that no reasonable judge could have reached.
iii) The Judge should have found that even if it was a ground on which consent was refused, it was only an ancillary consideration that was outweighed by the other bad grounds for refusal, and so overall the withholding of consent was unreasonable.
iv) The Judge should have held that consent had been unreasonably withheld by 24 April 2020 (i.e. well before the letter of refusal dated 16 July 2020) and was wrong to hold that there was no withholding of consent by reason of the delay in addressing the claimant's application.
v) The Judge was wrong to find that it was reasonable for the defendant to withhold consent on the ground of concern about fire damage to the structure of the building.
Given the grounds of appeal, in particular ground 1, it is of some relevance to refer to the basis on which the Judge refused permission to appeal. He gave as his brief reasons for refusal:
“Reasons given by D to C for withholding consent included that the proposed works prejudiced the fire safety of the block. I took this to include prejudicing the structural integrity of the building. I found that D's position was objectively reasonable and one which, based on the available information, D could reasonably have adopted …..
This was a central issue at trial. Confronting it was unavoidable. There is no real prospect of C establishing on appeal that the court ought not to have considered the issue or could not properly have decided it in that way.”
The building in question is not a block in any conventional sense but a converted terraced house, with flats on the basement, ground and first floors, and the Flat on the second and third floors, extending into the roof space at third floor level (as I was told at the hearing). Above the Flat is the roof covering. Professor Schehtman and his family own the three lower flats in the building and he lives in one of them.
The Judgment does not deal with the extent of the demise of the Flat, as described in the lease of the Flat, but it appears to have been understood and accepted that the demise did not include the roof covering (and any associated structure) itself. Whether it included the lateral walls at second and third floor levels is unclear.
It is unnecessary to refer further to the terms of the 999-year lease of the Flat because it was common ground that the effect of the alterations covenant and s.19(2) of the Landlord and Tenant Act 1927 was that the defendant could not unreasonably withhold consent to the alterations that the claimant had proposed and – in the event – had carried out, without consent in fact having been granted by the defendant.
The request for consent was made by Mr Jacobs by letter dated 23 August 2019. It included a letter from Mr Darren Ettles of Integral BC Solutions Limited, an Approved Inspector for Building Regulations, which confirmed that the proposed alterations to the Flat would meet the requirements of the Building Regulations 2010.
Professor Schehtman emailed Mr Jacobs on 18 September 2019 saying that the defendant would instruct its surveyors to review the application while at the same time looking to protect the ownership rights of the landlord and the other long leaseholders in the building. Mr Levy then contacted Mr Jacobs on 8 October 2019 introducing himself as the appointed surveyor and asking for a payment of fees on account for his work, to which Mr Jacobs agreed and which he paid on the same day.
Thereafter matters proceeded much more slowly. The details of the correspondence are set out in paras 22 to 51 of the Judgment, ending with the letter from Mr Levy to Mr Jacobs dated 16 July 2020, which is agreed to be the letter by which consent was actually refused on behalf of the defendant. For present purposes, it is sufficient to note that the 9 1/2 months that followed Mr Levy's initial involvement included:
i) more than one request for substantial further details and drawings, which were provided by Mr Jacobs on 28 November 2019;
ii) notification from Mr Levy on 4 December 2019 that he found the plans unacceptable, in that the second floor would comprise an open plan layout without any compartmentation of the staircase to the third floor, and a bedroom leading directly into the living area without separate means of escape (Mr Levy confirmed in evidence that he disagreed with Mr Ettles' assessment that the works would comply with Building Regulations);
iii) a response from Mr Jacobs on 5 February 2020, explaining that compliance with Fire Regulations was a matter for Building Control, on which Mr Ettles was an expert and Mr Levy was not;
iv) a letter from Mr Jacobs to the defendant dated 12 February 2020 asserting that there was unreasonable delay in dealing with the application;
v) a letter from Mr Levy to Mr Jacobs dated 17 February 2020 raising a new issue about the fabric of the floor at second floor level and whether it could accommodate the new pipework that Mr Jacobs' plans indicated would be laid, and a detailed reply from Mr Jacobs on 17 April 2020;
vi) a further letter from Mr Levy to Mr Jacobs dated 24 April 2020 stating that he was seeking independent expert advice on the application of the Building Regulations so far as fire protection, separation and layout was concerned, and that no further work would be done on the application until all outstanding fees were paid by Mr Jacobs;
vii) a further letter from Mr Levy to Mr Jacobs dated 29 May 2020 noting that works had started, saying that consent would not be granted until all the defendant's existing and future costs had been paid, and enclosing an opinion of a Mr Percival, also an Approved Inspector, who to some extent shared Mr Levy's view that the proposed layout was unacceptable;
viii) a reply from Mr Jacobs on 30 May 2020 agreeing with Mr Percival that even if there was non-compliance with Approved Document B (“Fire Safety”) of the Building Regulations, changes that made the position no worse than it already was were acceptable;
ix) a letter from Mr Levy to Mr Jacobs dated 4 June 2020, in which Mr Levy summarised his concerns about fire safety. These were that (a) Mr Ettles had not properly considered the fire safety implications of the layout, in particular compartmentation and means of escape; (b) the increased size of the kitchen and open plan layout unquestionably worsened the fire safety position overall; and (c) owing to the lack of compartmentation of the staircase, if fire broke out on the second floor it might “chimney up the open 2 nd/3 rd floor stairwell by convection, causing the fire severity to increase and risking far greater damage to the block structure in general as well as endangering the other residents of the block”.
The 4 June 2020 letter therefore raised two points that were concerned with the interpretation and application of the “Fire Safety” part of the Building Regulations (Mr Levy's concerns (a) and (b)), and a third (concern (c)) that stood outside those Regulations and was principally about the extent of potential damage to the landlord's property if there was a fire. In fact, only the roof covering and associated structure and possibly the party walls at high level were in issue under (c), given that the Flat was at the top of the building and within the roof space, and there were no other residents of the...
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