[2024] UKUT 51 (LC)

8 April 2024, the end date proposed in the paragraph 31 notice served by the respondent on 3 October 2022, fell more than 18 months after the date of the respondent’s paragraph 31 notice. Did it also fall after the date on which the Site Lease could, absent paragraph 30, have been brought to an end by the respondent?

The OT Lease enables the landlord to serve notice on any of five grounds specified in clause 5.8(b) of the lease which we set out at paragraph 14 above; four are exercisable in specific circumstances and ground (v) is available where the landlord wishes to terminate the lease for any reason other than those in grounds (i) to (iv). In the present case the respondent did in fact serve a notice relying upon ground (v) and the natural starting-point for an inquiry as to the validity of the paragraph 31 notice is to ask whether ground (v) was available to the respondent.

The claimant has argued that ground (v) was not available because the respondent intends to strip out the Kenton Road Exchange and remove all its contents. That is alteration, the claimant argues, covered in ground (ii). Moreover only that ground is consistent with the ground claimed in the paragraph 31 notice, namely the site provider’s wish to re-develop the property.

The respondent says that the stripping out of the premises is incidental to the real reason why it wants to end the Site Lease: in order to surrender it with vacant possession to AW. The fact that that is what the respondent wants to do is not in dispute. That is not a reason within grounds (i) to (iv). It is not arguable that the only ground within 5.8 that the respondent could have relied upon was the one that matched, or at least was closest to, the redevelopment ground in paragraph 31(4)(c) of the Code. Accordingly the respondent on 3 October 2022 could, absent paragraph 30 of the Code, have brought the lease to an end on 8 April 2024 by serving a break notice on the ground set out at clause 5.8(b)(v) of the lease.

We agree with that analysis. Ground (v) was available to the respondent. Therefore on 3 October 2022 the Site Lease could, but for paragraph 30, have been brought to an end by the service of a notice under clause 5.8(b)(v). The paragraph 31 notice was valid.