The user covenant in the respondents’ long lease and the particular circumstances of the grant of planning permission permitted them to live and/or work in the premises.
In AHGR Ltd v Kane-Laverack and another [2023] EWCA Civ 428; [2023] PLSCS 71 the Court of Appeal was asked to construe the phrase “live/work” in the respondents long lease of premises situated in Bermondsey, London, SE1 3HA.
The respondents lease contained a covenant that prohibited the use of the premises other than as a “live/work” unit in accordance with the terms and conditions of planning permission, which itself referred to “live/work”.
The appellant brought a claim for breach of covenant against the respondents, alleging that they had been using the premises for exclusively residential purposes.
Both the county court and the High Court determined that the phrase “live/work” in the respondents’ lease permitted them to live and/or work in the premises.
On appeal, the appellant argued that the Court of Appeal should place considerable reliance on the Supplementary Planning Guidance (“the SPG”) issued by the London Borough of Southwark.
According to the appellant, the use of the words “live/work” in the lease and grant of planning permission were ambiguous. In such circumstances, the use of those words had to be interpreted in light of the SPG, which plainly identified that “live/work” meant “live and work”. The Court of Appeal disagreed.
In dismissing the appeal, the Court of Appeal found that a reasonable reader of the grant of planning permission would not have had regard to the SPG or other such extrinsic material.
Those documents were neither referred to nor incorporated into the grant of planning permission.
In the circumstances of the grant of planning permission for the premises the phrase “live/work” meant “live and/or work”.
It was common ground between the parties that the use of the phrase “live/work” in the lease was ambiguous. The relevant plan that formed part of the planning permission did not impose separate “live” or “work” areas.
Accordingly, it was a matter for the lessees to determine where to live and where to work.
Further, due to the fact that a lessee might be served with enforcement notices and be subject to criminal proceedings for breach of planning permission, if it was intended that lawful use of the premises required both living and working, one would expect that to be spelt out using language that was both clear and unambiguous.
Elizabeth Dwomoh is a barrister at Lamb Chambers
