Rights of light — Express grant — Interference — Effect of express grant in lease — Whether servient owner entitled to obstruct light by new building contemplated prior to grant of lease — Whether dominant owner entitled to level of light subject only to interference within test in Colls v Home & Colonial Stores — Construction of lease
The defendant owned a long lease of a building, known as Riverside
Building, granted in 1993, pursuant to an agreement made in 1992. The plaintiff
owned land nearby, the East Land, on which it intended to construct a new
building that would interfere with light to Riverside Building. Both properties
were originally part of County Hall, London, prior to its disposal by the
London Residuary Board. By para 6 of the second schedule to the lease, the
defendant was granted ‘the right to the free and unobstructed passage of light
and air to the Premises at all times’. The proposed development of the East
Land was a more limited form of a scheme of development for which the London
Residuary Board sought planning permission in 1989. The transfer to the
plaintiff excepted and reserved rights to light in favour of Riverside
Building. The plaintiff contended that the right to light over the East land,
granted by para 6 of the second schedule, was only of so much light as would
survive the construction of the building scheme on that land, as was
contemplated by the application for planning permission in 1989. The
defendant’s position was that where an unqualified grant of the right to light
is accorded in a lease or transfer, in words familiar to conveyancers, and
without any qualification, or any reservation of a right to build or otherwise
interfere with the right to light granted, the court should give effect to the
well-established meaning of the words, as in Colls v Home &
Colonial Stores [1904] AC 179.
Held: Judgment was given to the defendant. Whether one
approached the construction of para 6 on the basis of a grant of a right to
light in such terms of art, as the defendant contended, or whether one adopted
the approach of the ordinary speaker of English, the result was the same. The
express grant of a right to light in a conveyance or a lease has been
understood by conveyancers to entitle the grantee to a degree of light that
satisfied the test laid in Colls v Home & Colonial Stores
[1904] AC 179. The parties were alive at the time of the grant of the lease to
make exceptions and reservations, as they thought necessary, to permit the
intended building on the East Land. But, on the true construction of the lease
as a whole, the plaintiff was not entitled to build on the East Land so as to
interfere with the right to light granted by para 6. There was nothing in the
agreement that preceded the lease to displace a construction of the lease that
the defendant was entitled to the benefit of the express grant without
interference. Commercial common sense could not support the construction
advanced by the plaintiff.
The following cases are referred to in this report.
Aldridge v Wright
[1929] 2 KB 117
Birmingham Dudley
& District Bank Co v Ross (1888) LR 38 ChD 295
Broomfield v Williams
[1897] 1 Ch 602
Colls v Home
& Colonial Stores Ltd [1904] AC 179, HL
Hansford v Jago
[1921] 1 Ch 322
New Hampshire
Insurance Co Ltd v MGN Ltd; Maxwell Communication Corp plc (in
administration) v New Hampshire Insurance Co Ltd [1996] 5 Re LR 103
Prenn v Simmonds
[1971] 1 WLR 1381; [1971] 3 All ER 237, HL
St Edmundsbury
& Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR
468; [1975] 1 All ER 772; (1974) 29 P&CR 336; [1975] 2 EGLR 115; 236 EG
343, CA
Swansborough v
Coventry (1832) 2 Moore & Scott 362
Sydall v Castings
Ltd [1967] 1 QB 302; [1966] 3 WLR 1126; [1966] 3 All ER 770, CA
Webb’s Lease, Re
[1951] Ch 808; [1951] 2 All ER 131, CA
This was a hearing of proceedings in which the plaintiff, Frogmore
Developments Ltd, claimed it was entitled to erect a building without
interference to a right to light asserted by the defendant, Shirayama Shokusan
Co Ltd.
Christopher Lockhart-Mummery QC and Timothy Morshead (instructed by
Howard Kennedy) appeared for the plaintiff; Michael Barnes QC and Nicholas
Taggart (instructed by Winward Fearon &Co) represented the defendant.
Giving judgment, NEUBERGER
J said: The defendant (Shirayama) is the owner of Riverside
Building, formerly County Hall, the headquarters of the erstwhile Greater
London Council. Immediately behind Riverside Building is a road called
Belvedere Road. On the opposite side of Belvedere Road is land known as the
East Land, which comprises two buildings (the North Block and the South Block)
that are set well back from Belvedere Road. The plaintiff (Frogmore) is the
owner of the East Land.
The issue between the parties is the extent of the rights of light
enjoyed by Riverside Building over the East Land. The issue arises because of
Frogmore’s intention to construct a new building (the new building) on the East
Land, which will interfere with Riverside Building’s light over the East Land.
The parties are agreed that the extent of the right to light
enjoyed by Riverside Building turns on the proper construction of a lease of
Riverside Building granted on 29 October 1993 (the lease) by the London
Residuary Body (LRB) to Shirayama, pursuant to an agreement made on 19 March
1992 (the agreement).
Facts
Initial History
Riverside Building, Belvedere Road, and the East Land all formed
part of what I will refer to as ‘the County Hall site’, which was statutorily
vested in LRB on l April 1986. Having invited bids for the County Hall site,
LRB accepted a bid from a group of developers, called County Hall Development
Group (CHDG), on 27 June 1988. In 1989 LRB and CHDG made a total of eight
applications for planning
development of the County Hall site.
The relevant components of the applications were as follows:
1. Riverside Building.
(a) Planning permission for change of use to residential, hotel,
conference and business centre with ancillary retail and other uses (appeal 4);
(b) Listed building consent for related works (appeal 5);
2. The East Land.
Planning permission for the demolition of the North and South
blocks, and the development of the site into the Belvedere Centre, which was to
be primarily an office building with retail and other uses; (appeal 8).
The Belvedere Centre would have been built up to the Belvedere Road
frontage of the East Land, which would, of course, have substantially reduced
the amount of light enjoyed by Riverside Building over the East Land.
This proposed development involved a degree of physical
interlinking between Riverside Building and the East Land. The means of access
to, and egress from, the service area and the office parking areas to be in the
basement of the Belvedere Centre were to be along a ramp partly under Riverside
Building. The means of access to, and
egress from, the hotel car park to be in the basement of Riverside
Building were to be along ramps partly under the East Land. In addition, some
parts of the retail areas to be in the basement and sub-basement of Riverside
Building extended into basement areas that were under the East Land (the retail
overlap areas).
After a local inquiry into the applications, the Secretary of State
for the Environment issued an interim decision letter on 24 July 1990 (the
interim letter). In that letter, the Secretary of State stated that, although
the proposals related to different parts of the County Hall site, ‘the
applications are inextricably linked’, and should either all be granted or all
refused. He further indicated that the applications were provisionally
acceptable, save that the two new buildings proposed for the East Land in
appeal 8 were too high in relation to the remainder of the County Hall site. Accordingly,
he recommended an amendment to the applications, involving a reduction to the
height of the proposed new buildings on the East Land, failing which he would
dismiss all eight applications.
His recommendation was adopted. This led to a reopening of the
public inquiry, following which a formal decision letter was issued by the
Secretary of State on 5 September 1991 (the decision letter). The effect of
this letter was to grant planning permission and listed building and
conservation area consent for the proposed development of the County Hall site,
as proposed in the various applications, amended pursuant to the
recommendations contained in the interim letter.
In allowing appeal 4, the Secretary of State imposed conditions,
which included the following:
(xiii) The car parking and service accommodation shown on the
approved drawings shall be provided and retained permanently for the
accommodation of vehicles and users of the premises and shall not be used for
any other purpose.
(xiv) The vehicular access way shown on the approved drawings to
service the redeveloped North and South blocks (the Belvedere Centre) shall be
permanently retained for such purposes.
In allowing appeal 8, the Secretary of State imposed conditions,
which included the following:
(iii) The car parking and service accommodation shown upon the
approved drawings shall be provided and retained permanently for the
accommodation of vehicles of users of the premises and shall not be used for
any other purpose.
(iv) No floor space created in the building pursuant to this
permission shall be used as offices until listed building works to the
Riverside Building have been completed in accordance with the plans approved by
the Secretary of State in this decision letter or any subsequent amendments
approved by the local planning authority or the Secretary of State…
Meanwhile, on 25 October 1990, after receipt of the interim
decision letter, but before the public inquiry reopened, receivers were
appointed to CHDG, and the contract for the sale of the County Hall site by LRB
to CHDG was determined. Sometime before that, in January 1990, Shirayama had
been interested in the possibility of acquiring an interest in Riverside
Building, and it would appear that it entered into negotiations with LRB for the
acquisition of a long lease of Riverside Building during 1990. Those
negotiations led to the agreement.
Agreement
It is necessary to refer to a number of the provisions in the
agreement. Clause 1.2 contained definitions, including the following:
(b) ‘Appeals’ means the appeals… referred to in the decision
letter [as defined above]…
(c) ‘Belvedere Centre’ means the property described as the
Belvedere Centre… in Appeal 8 or other similar development authorised by a
subsequent consent…
(ab) ‘Property’ means the Riverside Building…
(ac) ‘Remainder of the County Hall site’ means the County Hall
site excluding the Property.
By clause 4, LRB agreed to grant a lease that, to all intents and
purposes, was in the form of the lease as executed, for a premium of £60m.
Clause 5 is headed ‘New Planning Applications’. Clause 5.1
provides:
At any time following entry into the Agreement [Shirayama] may
with prior consent of the LRB make applications for planning permission, listed
building consent and/or conservation area consent… in respect of the Property…
(and subject to the provisions of 5.3) such consent will be granted where the
application or applications… fall within the scope of proposals set out by
Sidell Gibson partnership in their letter dated 9th March 1992… and such
consent should not otherwise be unreasonably withheld or delayed…
The letter there referred to (the Sidell letter), under the
subheading ‘Vehicular Services/Access/Parking’, stated:
It is proposed to separate the vehicular services links in the
basement areas between the proposed Belvedere Centre and the Riverside
Building. This provides a long term flexibility and independence of the
individual sites without compromising the facilities. It would introduce great
economics in the Riverside Building… It also provides a better attitude towards
management and security within the Riverside Building and Belvedere Centre… It
would, however, be necessary to provide an acceptable alternative access point
for the proposed Belvedere Centre.
Under the subheading ‘Conclusion’, the Sidell letter stated that,
among other things, the various changes proposed therein would create:
An independence to the access and vehicular servicing between the
Riverside Building and the Belvedere Centre, to improve the commercial
arrangement in terms of management and security to both sites.
Clause 5.2 of the agreement enabled Shirayama to require LRB:
To join with it in making applications for planning permissions,
listed building consents and/or conservation area consents for works outside
the Property and in particular… to change the arrangements for… the accesses to
the car parking and vehicular servicing in the Belvedere Centre… [Shirayama]
shall obtain the prior written consent of the Landlord [under the proposed
lease] to such applications… such consent not to be unreasonably withheld or
delayed but for the avoidance of doubt whilst the LRB is the landlord the LRB
should be entitled to withhold its consent to any such applications where… it
believes… that its ability to dispose of its interest in the Belvedere Centre
will be materially prejudiced by any permissions which might be granted
pursuant to any such applications…
By clause 6.2, Shirayama agreed to carry out the listed building
works required by the planning permission so that condition (iv) of appeal 8
was satisfied.
Clause 17.1 expressly provided that its provisions should continue,
notwithstanding the grant of the lease.
Clause 21 stated that:
In the event that the planning permissions granted on… Appeal 8
are implemented and any work is required within the curtilage of the Property
for the benefit of any part of the remainder of the County Hall not being works
required by Appeal 4 and Appeal 5 [Shirayama] shall be obliged to carry out
such work or should permit any such work to be carried out…
I should also refer to clause 23.1, which was in the following
terms:
If Appeals 4 and 5 are implemented or if any revised consents are
obtained by [Shirayama] (whether or not jointly with the Landlord) which
contain provisions for access to the car parking and servicing areas under the
Belvedere Centre through the property then… [Shirayama] and the LRB… shall
enter into an agreement in writing to provide such access to the said car
parking and vehicle servicing area in the Belvedere Centre…
The agreement was completed on 29 October 1993, when the lease was
granted substantially in accordance with the provisions contemplated by the
agreement, albeit that there was one amendment which is not, I think, material
to the issues before me.
Lease
Clause 1.1 contains definitions. The agreement was defined as
‘Agreement for Lease’, and ‘Belvedere Centre’ was defined as meaning:
The proposed redevelopment of the North and South Blocks County
Hall to provide a new building for office retail (A1) and class A2 and A3 uses
or other similar development authorised by a subsequent consent.
The property the subject of the demise was ‘Premises’, defined as
meaning Riverside Building, together with the half of Belvedere Road abutting
Riverside Building. ‘Retained Land’ was defined as meaning land including the
East Land (and that half of Belvedere Road abutting the East Land).
Clause 2.1 contained the demise of the ‘Premises’, and provided
that the term of the demise was 999 years from the date of grant, and that the
rent was a peppercorn. The rights granted as part of the demise to Shirayama
were set out in Schedule 2 and included the following:
4. The right to use the access and service roadways under the
Belvedere Centre and/or the Retained Land (if the same shall be constructed)
for access to the Premises and the adjoining car park if the same shall be
constructed…
6. The right to the free and unobstructed passage of light and air
to the
Premises at all times…
8. The right to use the part of Belvedere Road not included in the
Premises with or without vehicles and for all purposes subject to the Tenant
contributing
…
Schedule 3 contained the exceptions and reservations to LRB out of
the demise, among which were:
2. The right to use access and service roadways (if the same shall
be constructed) under Riverside Building leading to the Belvedere Centre
subject to payment of a fair proportion of the cost of maintaining and
repairing such access and service roadways…
4. The right to the free and unobstructed passage of light and air
to the Retained Land at all times.
6. The right to use the part of Belvedere Road not included in the
Retained Land with or without vehicles at all times subject to the LRB
contributing…
Clause 5.3 of the lease provided:
Neither [LRB] nor [Shirayama] shall be or become entitled to any
easement right quasi-easement or quasi-right save as expressly set out in
Schedules 2 and 3.
Subsequent History
By a transfer made on 29 March 1995, LRB transferred to Frogmore
the freehold of a block of property, including the East Land. By para 5 of
Schedule 2, there was excepted and reserved out of the transfer to Frogmore:
The right to the free and unobstructed passage of light and air to
the Retained Land at all times.
The expression ‘the Retained Land’ was defined as meaning Riverside
Building, of which LRB, at that time, still retained the freehold.
On 18 April 1995 LRB transferred the freehold of Riverside Building
to Shirayama. It is common ground between the parties that, in light of the
provisions of that transfer, the lease still survives and has not merged in the
freehold, despite the fact that they are both vested in Shirayama.
Having acquired the East Land, Frogmore decided to carry out a more
limited form of development on the East Land than the development permitted by
appeal 8. The North and South Blocks were to be retained, but the new building
would be constructed between them and it would extend up to Belvedere Road.
Because the new building, unlike the Belvedere Centre, would only abut
Belvedere Road along part of the East Land, it would not affect as much of
Riverside Building as would have been affected by the Belvedere Centre. On the
other hand, at least on the unchallenged evidence on behalf of Shirayama, the
effect of the new building would be to cause a very substantial diminution in
the amount of light reaching a significant part of Riverside Building.
Shirayama’s evidence is to the effect that the detrimental effect to that part
of Riverside Building that would suffer as a result of the new building would
be greater than that of the Belvedere Centre, had it been constructed.
Discussion
Introduction
The issue of central relevance concerns the effect of para 6 of
Schedule 2 to the lease (para 6). It is common ground that the proper
construction of para 6 turns on the wording of that paragraph, the other
provisions of the lease, the provisions of the agreement, the surrounding
circumstances and commercial common sense.
When construing a lease, there may be room for argument in some
cases as to whether the terms of the agreement pursuant to which it was granted
can be taken into account. In particular, it might be said to be inappropriate
that a lease, whose term and/or reversion could become vested in third parties,
should be construed by reference to an agreement for lease whose terms, indeed
whose very existence, may be unknown to such third parties. In the present
case, however, the common assumption that the term of the agreement can be taken
into account appears to me to be clearly well founded, in light of the fact
that the agreement is expressly referred to in the lease.
So far as the surrounding circumstances are concerned, it is, of
course, important to distinguish between the objective facts in existence when
the relevant contract was executed (which can be taken into account) and the
intention of the parties as to what the contract should mean (which cannot be
taken into account, at least in a case of construction, as opposed to rectification):
see the discussion in Prenn v Simmonds [1971] WLR 1381 at
pp1383H-1384G. Furthermore, before any surrounding circumstance can be taken
into account, it must be shown that it was, on the balance of probabilities,
known to both parties to the contract: see New Hampshire Insurance Co Ltd
v MGN Ltd The Times 25 July 1995 [[1996] 5 Re LR 103] . As to the date
upon which these surrounding circumstances must exist, I consider that the
relevant date is that of the agreement, and not that of the lease, because the
parties’ rights and obligations arose when they executed the agreement, and the
execution of the lease was pursuant to the obligations that arose under the
agreement. That view is indirectly supported by the observations of Rigby LJ in
Broomfield v Williams [1897] 1 Ch 602 at p616. However, I do not
consider that it matters which of those two dates one takes in the present
case.
Shirayama’s contention is that para 6 is in familiar and clear
terms. At the time of the agreement and the lease, Riverside Building enjoyed a
substantial amount of light over the East Land, and the purpose of the grant
was to ensure that nothing should be done on the East Land (or on any other
land then owned by LRB) that would so obstruct the light received by Riverside
Building that it fell below a level that, according to the ordinary notions of
mankind, would be required for the ordinary purposes for which Riverside
Building is used. The contention is expressed in those words because the grant
of a right to unobstructed light, unless, perhaps, expressed in very unusual
terms, does not entitle the grantee to object to every conceivable obstruction
to the light. As
[1904] AC 179 at p204:
According to both principle and authority, I am of the opinion
that the owner or occupier of the dominant tenement is entitled to the
uninterrupted access through his ancient windows of a quantity of light, the
measure of which is what is required for the ordinary purposes of inhabitancy
or business of the tenement according to the ordinary notions of mankind, and
that the question for what purpose he has thought fit to use that light, or the
mode in which he finds it convenient to arrange the internal structure of his
tenement, does not affect the question. The actual user will neither increase
nor diminish the right. The single question in these cases is still what it was
in the days of Lord Hardwicke and Lord Eldon — whether the obstruction
complained of is a nuisance.
Accordingly, Shirayama’s argument, is that, where an unqualified
grant of the right to light is accorded in a lease or transfer, in words
familiar to conveyancers and without any qualification or any reservation of a
right to build or otherwise to interfere with the right of light granted, the
court should give effect to the well-established meaning of the words. I was
referred to the observations of Diplock LJ in Sydall v Castings Ltd
[1967] 1 QB 302 at pp313F-314C, to the following effect:
Documents which are intended to give rise to legally enforceable
rights and duties contemplate enforcement by due process of law which involves
their being interpreted by courts composed of judges, each one of whom has his
special idiosyncrasies of sentiment and upbringing, not to speak of age. Such
documents would fail in their object if the rights and duties which could be
enforced depended on the personal idiosyncrasies of the individual judge or
judges upon whom the task of construing them chanced to fall. It is to avoid
this that lawyer’s, whose profession is to draft and construe such documents,
have been compelled to evolve an English language, of which the constituent
words and phrases are more precise in their meaning than they are in the
language of Shakespeare or of any of the passengers on the Clapham omnibus this
morning. These words and phrases to which a more precise meaning so ascribed
are called by lawyers ‘terms of art’ but are in popular parlance known as
‘legal jargon.’ We lawyers must not allow this denigrator description to
obscure the social justification for the use of ‘terms of art’ in legal
documents. It is essential to the effective operation of the rule of law. But
the phrase ‘legal jargon’ does contain a reminder that non-lawyers are
unfamiliar with the meanings which lawyers attach to particular ‘terms of art,’
and that where a word or phrase which is a ‘term of art’ is used by an author
who is not a lawyer, particularly in a document which he does not anticipate
may have to be construed by a lawyer, he may have meant by it something
different from its meaning when used by a lawyer as a term of art.
The agreement and the lease were clearly drafted by experienced and
sophisticated lawyers, and, accordingly, runs Shirayama’s argument, the
unqualified grant of a right to unobstructed light should be given the meaning
that any conveyancing lawyer would have understood it to have, at least since
the decision of the House of Lords in Colls.
Frogmore’s approach is, not surprisingly, rather different. It
contends that, properly construed, the right to light over the East Land, as
granted by para 6, was of only so much light as would survive the construction
of the Belvedere Centre, as contemplated by appeal 8, because it was clear that
the parties anticipated that the Belvedere Centre, or something similar to it,
would be built on the East Land. Frogmore refers to another observation of
Diplock LJ in Sydall to support the contention that other provisions of
a document, and/or the surrounding circumstances in which the document was
executed, can justify a departure from construing an expression as a term of
art. Sydall was concerned with the meaning of the word ‘descendant’ and
at p316G, Diplock LJ said:
unless there is something in the context of the document or in the
surrounding circumstances to indicate the contrary, [its]… meaning does not
include persons whose only claim to… relationship to or through a male is based
upon birth outside the bonds of wedlock.
Russell LJ, who agreed with the conclusion of Diplock LJ in that
case (namely that ‘descendant’ was to be interpreted as a term of art), said
much the same thing at p320C.
Frogmore contends that it would be contrary to the clear
expectation of the parties, as gathered from the term of the lease, the terms
of the agreement and all the surrounding facts, if para 6 had the effect for
which Shirayama argues. In effect, Frogmore contends that para 6 is silent as
to the precise quantum of light to which Riverside Building is to be entitled,
but that it is clear from all the circumstances that, so far as the light over
the East Land is concerned, it is that amount of light that would be available
after the Belvedere Centre had been built.
Para 6
Whether one approaches the construction of para 6 on the basis that
a grant of a right to light in such terms is a term of art, as Shirayama
primarily contends, or whether one adopts the approach of the ordinary speaker
of English, the result, in my view, is the same.
The express grant of a right to light in the conveyance or lease of
a building has been well understood by conveyancers, certainly since 1904, and
probably earlier, to entitle the grantee to a degree of light that satisfied
the test laid down in the passage I have quoted from Colls. In the
present case, the parties have emphasised the extent of the right granted by
using words such as ‘free and unobstructed’ and ‘at all times’.
If one approaches the wording of para 6 as an ordinary speaker of
English, it would seem quite obvious that the construction of the Belvedere
Centre, or, indeed, the new building, on the East Land would represent a
structure that substantially ‘obstructed [the] passage of light… to the
[Riverside Building]’.
In the circumstances, I consider that the plain meaning of para 6,
if it is read on its own at any rate, is as Shirayama contends. However, I
would accept Frogmore’s submission that, when construing para 6, as when
construing any other provision in a contractual document, any view, however
strong it may be, as to what the words of the provision mean on their face,
cannot be more than a preliminary view, which must be tested and reassessed by
reference to other provisions in the same document, commercial common sense,
and the surrounding circumstances.
Mr Christopher Lockhart-Mummery QC, on behalf of Frogmore, submits
that the provisions of para 6 do not actually identify the quantum of light
that was the subject of the grant; if that is correct, then the other terms of
the lease and the surrounding circumstances must be invoked effectively to fill
in a gap in the grant contained in para 6. I do not accept that argument,
essentially for reasons I have already given. First, the grant of a right to
light (especially when expressed in terms as strong as those of para 6) has, as
Mr Michael Barnes QC, on behalf of Shirayama, contends, a well established
meaning as a term of art to conveyancers. Second, as a matter of ordinary
language, the lease of a building, together with ‘the right to the free and
unobstructed passage of light’, appears to me to mean that the light enjoyed by
the building at the date of the grant will not be obstructed. The only arguable
difference between these two approaches could be said to be that the former
approach enables the landlord to ‘obstruct’ the light, provided that the light
enjoyed by the demised premises does not fall below the requisite standard.
Frogmore contends that the surrounding circumstances assist its
case. In particular, it is said that the layout of the County Hall site and the
terms of the interim and decision letters show that all parts of that site,
and, in particular, Riverside Building and the East Land, are ‘inextricably
linked’, physically and legally.
I do not derive any assistance from these surrounding
circumstances, at least taken on their own. The terms of the interim and
decision letters merely show that, at the time the agreement was entered into,
Shirayama and LRB would have been aware that it might be difficult to obtain
planning permission, listed building consent and/or conservation area consent
for a proposed development of its respective property, without coordinating any
application with the other. The consents given in the decision letter did not
impose any outright obligations on the owner or occupier of any part of the
County Hall site; there were merely conditions (some of which I have quoted
above) that applied only in the
agreement to the contrary, there would have been nothing to prevent the owner
of Riverside Building applying for planning permission, listed building consent
and/or conservation area consent for a self-contained scheme that may or may
not have been similar to that approved by the Secretary of State in the decision
letter.
Shirayama might well have expected to obtain planning permission
and other consents for a development of Riverside Building, which would be both
permitted and implemented without the cooperation of the owner of the rest of
the County Hall site. Similarly, LRB, when it disposed of half of Riverside
Building, might well have believed that it would be possible, in planning and
in practical terms, to develop the land it retained without the cooperation or
involvement of Shirayama. Indeed, on the facts as I understand them, Riverside
Building has been developed and altered pursuant to planning permission and
listed building consent, which do not refer to or depend upon the East Land;
similarly, Frogmore’s proposed development of the East Land, namely the
erection of the new building, is not, in planning terms, contingent in any way
on Riverside Building.
Lease
LRB did not expressly reserve to itself the right to construct the
Belvedere Centre (or some other building) on the East Land. It is not unusual
for a landlord (or a vendor) to reserve a right to itself to construct a
building on land he retains, notwithstanding that that building may interfere
with the passage of light or air to the premises demised (or sold). Indeed, in
the lease, LRB reserved to itself a number of rights in Schedule 3, including
(paras 1, 5 and 6) the right to enter Riverside Building for the purpose of
carrying out certain work, (para 3) the right of support and protection from
Riverside Building and (para 8) the right to oversail the airspace above
Riverside Building with cranes, in addition to the other rights in the Schedule
to which I have referred.
Numerous authorities establish that there is a sharp distinction
between the circumstances in which the court will imply rights in favour of a
purchaser or a tenant, and the circumstances in which the court will imply
rights in favour of a vendor or landlord. It is far easier to infer the grant
of a right than it is to infer a reservation of a right essentially because of
the principle that a grantor (be it a landlord or a vendor) should not be
permitted to derogate from its grant. A striking example of the difficulty
faced by a landlord who seeks to imply the reservation of a right may be found
in Re Webb’s Lease [1951] Ch 808. In that case, the landlord demised the
upper floors of a building in which he carried on business on the ground floor;
on the exterior of the upper floors was an advertisement for the landlord’s
business; the Court of Appeal held that there was no implied reservation in
favour of the landlord to maintain an advertisement on the exterior of the
demised premises, even though the tenant knew that the advertisement was there
at the time he took the lease. At p823, Jenkins LJ said:
As to the law applicable to the case, it is not disputed that as a
general rule a grantor, whether by way of conveyance or lease, as part of a
hereditament in his ownership, cannot claim any easement over the part granted
for the benefit of the part retained, unless it is expressly reserved out of
the grant…
There are, however, certain exceptions to the general rule. Two
well-established exceptions relate to easements of necessity and mutual
easements such as rights of support between adjacent buildings. But it is
recognised in the authorities that these two specific exceptions do not exhaust
the list, which is indeed incapable of exhaustive statement, as the
circumstances of any particular case may be such as to raise a necessary
inference that the common intention of the parties must have been to reserve
some easement of the grantor, or such as to preclude the grantee from denying
the right consistently with good faith, and there appears to be no doubt that
where circumstances such as these are clearly established the court will imply the
appropriate reservation.
In the present case, Shirayama’s case is stronger than that of the
successful tenant in Webb in two respects. First, Frogmore is
effectively contending for a reservation that is inconsistent with the normal
and natural meaning of a right expressly granted to Shirayama. Second, in Webb,
the landlord was merely seeking to argue for the maintenance of the status quo
as it physically existed at the date of the grant of the lease; whereas, in the
present case, Frogmore is effectively seeking to imply a reservation to change
the position on the ground very substantially.
On the other hand, in the present case, unlike in Webb
(where, to use the words of Jenkins LJ at p822, the lease ‘contained no vestige
of a provision reserving to the landlord any right to use any part of the outer
walls of the demised premises’), there is reference in the lease to the
Belvedere Centre, which, particularly when one looks at the definition of it,
gives some force to the argument that the parties contemplated that the East
Land might be developed as ‘the Belvedere Centre’, which might well have been
along the lines of the development the subject of application 8.
Bearing in mind: (i) the principles enunciated in cases such as Webb;
(ii) the clear, familiar, and unqualified way in which para 6 is expressed; and
(iii) the fact that the parties to the lease were clearly alive to the need to
make exceptions and reservations in favour of LRB where they thought it
appropriate, I do not consider that the references in the lease, and, in
particular, in para 4 of Schedule 2 and paras 2 and 6 of Schedule 3, are
sufficient to establish that para 6 of Schedule 2 should be treated as
implicitly qualified in the manner for which Frogmore contends. All that para 4
of Schedule 2 establishes is that if the Belvedere Centre is constructed,
certain rights of way will be accorded to Shirayama. It is hard to see how that
provision, particularly in view of the fact that it is clearly included for
Shirayama’s benefit, should have the result of imposing a qualification that is
potentially very disadvantageous to the wide and clear words of para 6.
So far as paras 2 and 6 of Schedule 3 are concerned, they merely
reserve contingent rights of access over the ramps (which Shirayama is not obliged
to construct, as is specifically recognised in terms in the former paragraph).
Para 6 of Schedule 2 can be reconciled with paras 2 and 6 of Schedule 3 without
having to cut down the natural meaning of the former provision. The reference
to ‘the Belvedere Centre’ in Schedule 3 is perfectly capable of meaning ‘the
Belvedere Centre if constructed’. This would be consistent with the fact that
there was clearly no obligation on LRB or its successors to construct the
Belvedere Centre; in those circumstances, it is not illogical that there should
be no obligation on Shirayama to permit the construction of the Belvedere
Centre. Further, it is clear from the definition of ‘the Belvedere Centre’ in
the lease that the parties envisaged that it would not necessarily be the
development permitted by appeal 8. Accordingly, the references to ‘the
Belvedere Centre’ in Schedule 3 to the lease were presumably envisaged by the
parties as meaning either a reference to a newly designed development that did
not interfere with the rights of light granted to Riverside Building or, if it
were to be a development that caused such an interference, then, before it
could be undertaken, LRB (or its successors) would have to agree terms with
Shirayama in a way that is frequently done between developers and neighbours
with rights of light.
Accordingly, I take the view that the provisions of Schedules 2 and
3 to the lease either indirectly assist Shirayama (in that they show that the
parties were aware of the need for LRB to reserve and except expressly any
rights that it wished to have) or, in so far as they refer to the Belvedere
Centre, they do not assist Frogmore.
My conclusion is reinforced by other factors. First, it appears to
me that Frogmore’s construction runs into difficulties, not only because of the
way in which para 6 is expressed, but also because of the provisions of clause
5.3 of the lease. At any rate, on one view of the matter, Frogmore’s contention
involves implying a reservation out of the grant contained in para 6. Quite
apart from the difficulty thrown up by the derogation from grant principle, it
appears to me that clause 5.3 can justifiably be invoked by Shirayama as an
express term between the parties that excludes the possibility of such
reservation. Although clause 5.3 does not expressly refer to reservations or
exceptions, I consider that it must extend to them, not least because of the
express reference in the clause to Schedule 3. However, it is fair to say that
Frogmore’s case has been argued not so much on the basis of a reservation out
of the grant
the grant in para 6 is not defined.
Second, in para 4 of Schedule 2, rights of light in favour of the
remainder of the County Hall site (including the East Land) were reserved to
LRB in effectively identical terms to which the right to light was granted in
favour of Riverside Building under para 6 of Schedule 3. While obviously not
impossible, it would be a somewhat surprising result if the grant and
reservation of a right to light expressed in the terms in the same document had
very different effects, particularly, as would be the case on Frogmore’s
construction, if the reservation resulted in a substantially more beneficial
right than the grant.
Third, it is clear that the premises demised by the lease do not
include the retail overlap areas or any rights in favour of Shirayama over
those areas. In those circumstances, it appears to me that the parties must
have appreciated that it would not have been open to Shirayama to implement
appeal 4, without negotiating with LRB, or its successor, as owner of the East
Land. This is consistent with the conclusion I have reached, namely that, in
executing the agreement, LRB and Shirayama were accepting that, while it was
conceivable that the permissions embodied in the decision letter would be
implemented, that would only happen if the owner of the East Land and the owner
of Riverside Building chose to cooperate. However, there was plainly no intention
that either party should have the right to require the other party to carry out
a particular development, and no intention that either party could be prevented
by the other from effecting a wholly different development for which fresh
permissions would be needed, in relation to its part of the land.
Fourth, Frogmore’s case is not that there is an implied term into
the lease that the owner of the East Land would be entitled to build the
Belvedere Centre; it is that the owner of the East Land should be entitled to
build any building that would interfere with Riverside Building’s enjoyment of
light to no greater extent than the Belvedere Centre would have done. There is
a practical difficulty with this construction; the point is well demonstrated
by considering Shirayama’s evidence on the facts before me. As I have
mentioned, while the new building would interfere with the light enjoyed by a
substantially smaller part of Riverside Building than would have been
interfered with by the Belvedere Centre, that part of Riverside Building
affected by the new building would be significantly more detrimentally affected
than it would have been by the Belvedere Centre. In other words, the harm
caused by the new building would be more concentrated, but in relation to a more
limited area. Is that permitted under Frogmore’s construction of the lease? I
think it would be difficult to decide in many cases whether the interference
with Riverside Building’s right to light by such a structure would be greater
or less than the interference would have been by the Belvedere Centre; to my
mind, it would even be difficult to determine the criteria by which the
comparison should be made.
Agreement
Having reached the conclusion that para 6, whether one looks at the
words of that paragraph on their own or in the context of the lease as a whole,
has the meaning for which Shirayama contends, I consider that very clear
provisions in the agreement would be required in order to displace that
construction. Indeed, it seems to me that only if it contained a provision that
clearly entitled LRB to construct the Belvedere Centre on the East Land,
notwithstanding the grant of the lease, would the agreement be at all likely to
assist Frogmore’s argument.
Frogmore places some reliance upon the provisions of clauses 5.1
and 5.3. In my judgment, those provisions do not assist Frogmore. First, they
are concerned with the rights of Shirayama to make a fresh planning application
in respect of the Riverside Building (in the case of clause 5.1) or with connected
works outside Riverside Building (in the case of clause 5.3).
Accordingly, they do not appear to be provisions that were intended
by the parties to benefit LRB or, in particular, to have the effect of
permitting LRB to do anything on the East Land. Second, the fact that they are
concerned with applications by Shirayama for permissions for developments other
than that permitted by the decision letter indicates that the parties were
indeed contemplating that the fabric and/or use of Riverside Building might be
altered in a way different, possibly very different, from that contemplated by
appeals 4 or 5. The corollary is that the parties must have envisaged that
there was, at the very least, a possibility of the East Land being developed
other than as the Belvedere Centre.
Clause 5.1 effectively incorporates the Sidell letter into the
agreement. It seems to me that, so far as the issue between the parties in the
present case is concerned, this letter cuts both ways. On the one hand, it
states in terms that the proposed development of Riverside Building and the
East Land should be changed from that contemplated by the decision letter so
that ‘independence of the individual sites’ and ‘independence to the access and
vehicular servicing between the Riverside Building and the Belvedere Centre’
can be achieved. This would appear to confirm the fact, which is supported by
the very existence of the agreement, that there is to be separate effective
ownership and control of the two parts of the County Hall site. It accordingly
casts further doubt on Frogmore’s contention that the parties must have
regarded the two sites as ‘inextricably linked’.
On the other hand, the Sidell letter does make reference, in more
than one place, to ‘the proposed Belvedere Centre’ and to ‘the Belvedere
Centre’. Frogmore contends that this demonstrates that the parties envisaged
that the Belvedere Centre, or something similar to it, would be constructed on
the East Land, and that the right to light granted by para 3 must be treated as
qualified accordingly. I do not accept that point. The Sidell letter was
incorporated in the agreement through
clause 5.1, which is concerned with the possibility that Shirayama might
wish to carry out a different development of the Riverside Building from that
permitted by the decision letter. The Sidell letter was not included in the
agreement in connection with any potential development of other parts of the
County Hall site, such as the East Land. Furthermore, the Sidell letter shows
that the parties anticipated that it was likely that there would be a different
development of the East Land from that contemplated by the decision letter. Yet
the agreement contains no provision mirroring clause 5.1 relating to the sort
of development of the East Land that LRB, or its successors, would be entitled
to carry out. The fact that the writer of the Sidell letter made reference to
the ‘Belvedere Centre’ and ‘the proposed Belvedere Centre’, at a time when the
whole County Hall site was in one ownership and no part of it was subject to an
agreement for lease or for sale, is, in any event, insufficient to lead to the
conclusion that its incorporation with the agreement enables LRB, or its
successors in title, to erect the Belvedere Centre, particularly as the parties
expressly contemplated, under the same agreement, that an unqualified right to
light over the East Land would be granted to Riverside Building.
As to the two references to ‘the Belvedere Centre’ in clause 5.3,
the same points may be made about those references as may be made about the
references to the Belvedere Centre in clause 5.1.
Clause 6.2, which requires Shirayama to carry out the listed
building work so as to satisfy condition (iv) of appeal 8, is another provision
upon which Frogmore relies, contending that it is self-evident from the way in
which the clause is expressed that its purpose was to satisfy a condition
imposed on the use of the Belvedere Centre when constructed.
To my mind, the obligation in clause 6.2 was imposed because the
Secretary of State, in his interim and decision letters, as well as by imposing
condition (iv) when granting appeal 8, made it clear that he regarded the
various components of the County Hall site as related, and that he did not wish
a redevelopment of the East Land to go ahead without the appropriate listed
building works being carried out to Riverside Building. The parties may well
have thought that the Secretary of State’s concern in this connection did not
necessarily depend on the precise nature of the proposed development of the
East Land. Accordingly, given that LRB would otherwise have had no
power to ensure that the listed building works were carried out to Riverside
Building, and that LRB wished to retain the ability to effect some
redevelopment of the East Land, it was sensible to include a provision such as
clause 6.2, irrespective of whether and, if so, when and how, the East Land was
to be redeveloped.
As for clause 21, I do not consider that it assists Frogmore, for
two reasons. First, the clause merely states that LRB, or its successors in
title, as owners of the East Land, will have certain rights against Shirayama
in relation to the carrying out of the work if the planning permission granted
for the Belvedere Centre is implemented. It does not state that, notwithstanding
any provision to the contrary, LRB or its successors in title, as owners of the
East Land, will be entitled to construct the Belvedere Centre. Second, clause
21 indicates that the parties were aware that if LRB wished to reserve rights
in relation to the construction of the Belvedere Centre in so far as it
affected Riverside Building, it had to do so expressly. Its inclusion could,
therefore, be said to help Shirayama’s case, in that the fact that certain
rights have been expressly reserved against Riverside Building makes it more
difficult to imply the reservation of other rights.
Clause 23 does not, in my judgment, carry Frogmore further, either.
It is clear that the parties did not envisage that LRB would be under an
obligation to construct the Belvedere Centre, and therefore the clause must be
read on the basis that it will apply only if the Belvedere Centre is
constructed. It appears to me that clause 23 no more imposes a general
obligation on Shirayama to accept that the Belvedere Centre could be
constructed, than it imposes an obligation on LRB to construct the Belvedere
Centre so that the vehicular and service access referred to in the clause can
be enjoyed by Shirayama in the event of its implementing the planning
permission granted on appeal 4.
Looking at the agreement as a whole, it seems to me that the
parties did not expect the permissions contained in the decision letter to be
implemented. That view is supported by the fact that Riverside Building was
being transferred into different ownership, by the fact that there was no grant
so far as the retail overlap areas, and by the terms of the Sidell Letter. In
addition, the affidavit evidence strongly suggests that the state of the
economy and of the property market at the date of the 1992 agreement would have
been such that the parties would have appreciated that the development
permitted by the decision letter was unviable. For what it is worth, the view
is also supported by the actual development of Riverside Building and the
current proposed development of the East Land.
In these circumstances, I am of the opinion that, given my
conclusion as to the effect of para 6 in the context of the lease, the various
provisions of the agreement, upon which Frogmore relies, whether taken
separately or together, are insufficient either to justify a different
construction of para 6 or to lead to the conclusion that the terms of the
agreement reserve a right to LRB, and its successors in title, to construct the
Belvedere Centre or some other similar building, on the East Land,
notwithstanding the grant of the lease, and, in particular, para 6.
Commercial common sense
It was contended on behalf of Frogmore that this result is in some
way commercially ‘absurd’. I do not accept that argument. It is not as if this
conclusion involves the East Land being incapable of any possible
redevelopment. It is clear, for instance, that there is nothing in the lease or
the agreement that would prevent the North and/or South Blocks being pulled
down and replaced by modern buildings. Furthermore, it seems likely, from my
inspection of the plans, photographs of models, and reading of the evidence,
that a more extensive redevelopment of the East Land could not be objected to
by the owner or occupier of Riverside Building, albeit that any development
such as the Belvedere Centre or the new building, involving a substantial
many-storied structure abutting Belvedere Road, would be very likely to be an
interference with Shirayama’s rights under para 6.
If anything, it seems to me that it would be commercially
unattractive if I were to find in favour of Frogmore. On the evidence, the
result would be that Shirayama, which had paid a very substantial sum indeed
for the lease and its apparent unqualified grant of light in para 6, would find
itself having effectively acquired a building (according to a detailed,
unchallenged expert report put in evidence on behalf of Shirayama) that enjoyed
good light over the East Land, but that, as a result of a proposed development
of the East Land by what, in Frogmore’s case would be permitted, would have its
light:
so curtailed that the need for electric light will be permanent,
be it night or day. The general amenity of the [Riverside Building would be]
thus significantly affected. I would reiterate that the damage is extreme
being, in my experience, more serious than anything I have seen.
In the same report, it was said that the new building would result
in:
a very serious loss of light to large parts of the Riverside
Building such that in some of the rooms at lower floor levels, virtually all
light will be lost. From basement to at least second floor level, some of the
rooms are very badly affected and will be very different in terms of aspect and
attractiveness from what they are at the moment.
Authorities
So far, I have not referred to two authorities involving a somewhat
similar point to that in the present case. In Swansborough v Coventry
(1832) 2 Moore & Scott 362, two adjoining properties were sold by the
same vendor at the same auction. The first, purchased by the plaintiff, was
acquired ‘together with all… lights… belonging or in anywise appertaining [to
the property]’ and was also described as being bound by ‘a piece of freehold
building land’. This was the other property, which was purchased by the
defendant. A flat-roofed one-storey building had existed on the defendant’s
land until it had been demolished approximately a year before the auction.
After the plaintiff and defendant had purchased their respective properties,
the defendant constructed a building that was taller and closer to the
plaintiff’s property than the previously demolished one-storey building. Tindal
CJ said at pp369-370:
It is well established by the decided cases, that, where the same
person possesses a house having the actual use and enjoyment of certain lights,
and also possesses the adjoining land, and sells the house to another person,
although the lights be new, he cannot, nor can anyone who claimed under him,
build upon the adjoining land so as to obstruct or interrupt enjoyment of those
lights… And in the present case, the sales to the plaintiff and the defendant
being sales by the same vendor, and taking place at one and the same time, we
think the rights of the parties are brought within the application of this general
rule of law… The vendor conveyed to the plaintiff a messuage, with all its
lights and easements, without any restrictions or qualifications; and we think
it would be attributing too much force to the description of boundary in this
case, if it were to be held to operate indirectly to the destruction of the
rights expressly conveyed by the deed. The very term ‘building ground’ is a
loose and general expression; and may be equally satisfied by the power of
erecting a building which should leave the plaintiff’s lights altogether
undisturbed, or partially obstructed only, or altogether blocked up.
Shirayama relies upon these observations. However, Tindal CJ
continued:
The question therefore is, what is the meaning most consistent
with the grant of the vendor to both parties. And, as we find, that, in point
of fact, had been a building on the ground in question for a very long period
of time, and recently demolished, which extended only to the height of the
first floor of the plaintiff’s house, we think this gives the limited extent
intended by the terms of the description, so as at once to satisfy those terms,
and at the same time to prevent the vendor from frustrating his own grant. This
is, in effect, not a contradiction, but an explanation of the terms of the
grant… By this construction, both the parties have the benefit of their
respective grants; the plaintiff has the enjoyment of those rights which the
premises possessed in the hands of the vendor, and the defendant has the right
to build to extent of the former building.
I do not consider that these latter observations assist Frogmore’s
case. First, the wording of the grant of light to the plaintiff in Swansborough
was far less emphatic than the way in which para 6 is expressed in the present
case. Second, there do not appear to have been any express reservations to the
vendor in the plaintiff’s conveyance in
reservations, I think it is more difficult to imply further reservations. Third,
there was no building on the defendant’s land at all, and it was described as
building land, not only in the plaintiff’s contract but also, presumably to the
plaintiff’s knowledge, in the defendant’s contract; that is a very different
position from the present case. Fourth, until very recently, there had been an
actual building on the defendant’s land, which gave a pretty clear indication
as to the extent to which the defendant’s land could be developed and also
showed that the building on the plaintiff’s land had been enjoyed
notwithstanding the existence of such a building on the defendant’s land; that,
again, is very different from the present case. Fifth, as is clear from the
argument at the top of p366, the building that the court in Swansborough
considered could be put up on the defendant’s land ‘did not intercept or
prevent the ingress of light or air to any of the windows of the plaintiff’s
house, excepting those upon the ground floor’; that can be contrasted with the
uncontradicted evidence put forward on behalf of Shirayama, to which I have
referred. Sixth, the position on the ground in Swansborough was probably
very different, in that it appears from the report more likely than not that no
significant development of the defendant’s land could have been effected
without causing a nuisance to the light to the plaintiff’s building, whereas it
is clear that a very substantial development of the East Land could have been
effected without causing a nuisance to the light of Riverside Building. Finally,
Swansborough was a case of simultaneous sales with a common vendor, so
that the defendant was, at least arguably, in a somewhat stronger position than
Frogmore in the present case: the defendant could argue that he was relying on
an implied grant to him to build, as much as on an implied reservation out of
the conveyance to the plaintiff. This may seem inconsistent with what Tindal CJ
said in the first part of the earlier passage I quoted, but I draw some support
for it from observations in Hansford v Jago [1921] 1 Ch 322 at
p337, where Russell J expressly refers to the reasoning in Swansborough
(and see also the illuminating analysis of Greer LJ in Aldridge v Wright
[1929] 2 KB 117 at pp130-132).
In Birmingham Dudley & District Banking Co v Ross
(1888) LR 38 ChD 295, the Court of Appeal held that the purchaser of a piece of
land from Birmingham Corporation could not prevent construction of a building
on another piece of land, notwithstanding the fact that this building would
significantly cut down the light enjoyed by the purchaser, and notwithstanding
the fact that there was no express reservation in favour of the corporation.
The Court of Appeal reached this conclusion on the basis of what the
corporation and the purchaser must have intended in light of the surrounding
circumstances.
In my judgment, that decision does not assist Frogmore. First, all
three members of the Court of Appeal emphasised that they were concerned with
the extent of an implied right and not, as in the present case, with an express
right. Indeed, the fact that this point is emphasised in more than one place
(in the judgments of Lindley LJ at pp311-312 and Bowen W at pp314-315) appears
to me rather to assist Shirayama’s contention in the present case. Second, it
appears to have been quite clear from the evidence that, as a matter of fact,
the purchaser knew that the corporation’s land was to be built on ‘in any way
the Corporation liked’: per Lindley LJ at p312, and there are similar
observations from the other judgments at pp309 and 315. Here, whether one looks
at the lease and the agreement or whether one looks at the oral evidence, it
cannot possibly be said that Shirayama knew that the Belvedere Centre would be
constructed. Indeed, the documentation and the evidence suggest that the parties
thought it was unlikely that the Belvedere Centre would be constructed. Third,
as was pointed out by Rigby W in Broomfield at p616, the purchaser in Ross
did not contract to purchase a building, but contracted to purchase a piece of
land upon which he was to construct the building, following which the
corporation were to convey the land to him.
Conclusion
I have considered the words of para 6, the surrounding
circumstances, the other provisions of the lease, the provisions of the
agreement and commercial common sense. In St Edmundsbury & Ipswich
Diocesan Board of Finance v Clark (No 2) [1975] 1 All ER 772* at
p779h-j Sir John Pennycuick, giving the judgment of the Court of Appeal said:
Counsel… contended that the proper method of construction is first
to construe the words of the instrument in isolation and then look at the
surrounding circumstances in order to see whether they cut down the prima facie
meaning of the words. It seems to us that this approach is contrary to
well-established principle. It is no doubt true that in order to construe an
instrument one looks first at the instrument and no doubt one may form a
preliminary impression on such inspection. But it is not until one has
considered the instrument and the surrounding circumstances in conjunction that
one concludes the process of construction.
* Editor’s note: Also reported at [1975] 2 EGLR 115; (1975) 236 EG
34
In the present case, it may be said that the analysis I have
undertaken has fallen foul of these observations. I do not believe that it
does, but it is right to say that, standing back and looking at all the
aspects, namely the surrounding facts, the words of para 6, the other
provisions of the lease, the provisions of the agreement, and commercial common
sense, I do not consider that there are good grounds for departing from the
relatively plain meaning of the grant, whether one construes it by reference to
ordinary language or as a term of art. To any ordinary speaker of English who
is not legally experienced, the erection of the Belvedere Centre would most
certainly represent an obstruction to the light enjoyed by Riverside Building
at the date of the agreement and of the lease. To any person experienced in
conveyancing, the erection of any building on the East Land that cut down the
light enjoyed by Riverside Building over the East Land below the level
indicated by the test in Colls, would represent a breach of Riverside
Building’s enjoyment of light, as conferred by para 6.
There are provisions of the lease and of the agreement that can
fairly be said to indicate that the parties thereto contemplated that the
Belvedere Centre (or a development of the East Land similar thereto) might be
constructed. I do not consider that any such provision, whether taken on its
own or together with all the other provisions, is sufficient to cut down by
reservation, implication or inference the comparatively clear effect of the
words of para 6. As for the surrounding circumstances and commercial common
sense, I consider that they take matters no further or, if anything, they
assist Shirayama.
Accordingly, I find for Shirayama. I would like to end by thanking
counsel for the clear, succinct and helpful way in which the case for each
party was argued.
Claim dismissed.
