Windsor-Clive v Rees [2019] EWHC 1008 (Ch) concerned land that forms part of the Plymouth estate. It has been farmed by the same tenant farmer for more than 50 years, but is earmarked for development as part of Plasdŵr “garden city”, to the north-west of Cardiff. Consequently, the landlord had commissioned, or allowed, a number of surveys connected with the proposed development and, following difficulties in obtaining access for a bat survey, sought to restrain the tenant from interfering with or restricting access to the farm.
There were two written tenancy agreements. One reserved a right for the landlord “and all others authorised by him with or without horses carriages and other vehicles to enter on any part of the farm lands and premises at all reasonable times for all reasonable purposes”. The other enabled the landlord to “enter upon the said premises with agents servants workmen and others for the purpose of inspecting… or for making roads sewers or drains or for any other purpose connected with his estate”.
The landlord pointed to the breadth of the wording in the written tenancy agreements. But the tenant argued that a clause reserving rights of entry in favour of the landlord should be narrowly construed. He claimed that a right of access, limited only by a requirement of reasonableness, would be inconsistent with the grant of exclusive possession, and with the landlord’s implied covenant for quiet enjoyment and obligation not to derogate from his grant.
The court began by considering a wide range of authorities, noting that, because a landlord cannot derogate from his grant, reservations of rights to a landlord will, if possible, be construed so as to be consistent with the irreducible minimum consistent with the grant itself. And, if they cannot be so construed, they will be rejected as being repugnant to the demise. The question was: what were “all reasonable purposes” – and in the case of a reservation of rights in a lease, the obvious way to assess reasonableness was by reference to the parties’ relationship.
The judge noted that the first agreement did not provide for the landlord to minimise any disruption to the tenant or to pay compensation for any damage caused, indicating that the parties had not intended the landlord to undertake intrusive activities on the farm or to damage the land. Therefore, the landlord did not have the right to erect structures, to intrude below the surface, to peg out intended development sites, to cordon off parts, or to interfere significantly with the operation of the working farm. But a surveyor might be able to place discreet reference points on the land to enable him to conduct a visual survey and inspection – and, depending on their position, nature and effect, might be able to install monitoring devices, such as remote bat detectors.
The rights reserved by the other written tenancy agreement were more difficult to interpret. However, the judge concluded that the two clauses were very similar, although the landlord might also be able to exercise rights of entry to enable him to construct roads, sewers and drains on any adjacent land that he owned.
The judge accepted that the tenant had, at times, been positively difficult, but was not persuaded that the tenant would deny the landlord access for purposes that had been established as being lawful. Consequently, he did not consider it necessary to grant an injunction to restrain the tenant from doing so.
Allyson Colby, property law consultant