JUDGMENT
I direct that, pursuant to CPR PD 39A paragraph 6.1, no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
1. This is the trial of a claim, without live evidence, relating to long leasehold premises at 3 Mertoun Terrace, Seymour Place, London W1 (“the maisonette”) in which I have been asked to determine two issues:
(i) whether the roof and air space above the maisonette are demised to the tenants of the maisonette;
(ii) if not, whether the landlords of the maisonette are entitled to erect additional premises on the roof of the building of which the maisonette forms part notwithstanding that this will involve blocking the skylights set into the roof above the maisonette.
Factual background
2. The Claimant is the long head-lessee of a terrace of residential maisonettes comprising 1-12 Mertoun Terrace, Seymour Place, 2-26 (even numbers) Bryanston Mews West and 5 Bryanston Place, London W1 (“the terrace”). The Defendants are the owners of a long sub-lease of the maisonette. The maisonette is towards the southern end of 1-12 Mertoun Terrace. During the course of the trial I was taken to visit the site where I viewed the interior of the maisonette, the exterior and I was taken up onto the roof to look at the structure of the terrace and the lightwells set into the roof. The maisonettes are arranged in 13 pairs: those with an address and front door in Mertoun Terrace comprise the second and third floors of the terrace, those with an address in Bryanston Mews West comprise the ground and first floors, with their front doors leading out into the Mews.
3. I was told that the terrace was constructed with a 9 inch concrete frame, the exterior walls being made of brick. The roof of the terrace is flat and consists of pre-cast concrete slabs into which skylights or roof lights, circular in shape and approximately one yard in diameter, have been set. I will refer to these as “skylights”. On the roof there is around each skylight a circular concrete up-stand a few inches high upon which fit concave glass lenses allowing light to enter the maisonettes but protecting the interior of the building from the elements. The lower floor of the maisonette, being the second floor of the terrace, consists of a dining room, sitting room, study and kitchen, the upper floor consists of three bedrooms and two bathrooms. Access between the floors, and indeed from the front door, is via a relatively large curved staircase the shape of which is echoed by the curved interior wall which was clearly a design feature of the maisonette. There are three skylights serving the maisonette: one is above the top of the staircase towards the external wall on the Bryanston Mews West side of the terrace, echoing the curve of the interior wall, a second sits above the landing between the two main bedrooms and the third, which is at right-angles to the other two, provides light to a windowless internal bathroom which has no other source of natural light. Each of the other rooms in the maisonette has the benefit of at least one external window. What has given rise to the current problem is that on 31 January 2006 the City of Westminster granted planning consent for the development of the terrace by the erection of a roof extension to provide additional accommodation for each of the existing 13 dwellings which the landlord wishes to implement by creating a further storey on the roof of the terrace. The Defendants, on the other hand, have claimed an extension of their lease of the maisonette under the Leasehold Reform, Housing and Urban Development Act 1993. Proceedings in the Leasehold Valuation Tribunal to determine the terms of acquisition of the new lease stand adjourned pending determination of the issues before me.
Title
4. By a lease dated
“ALL THOSE pieces or parcels of ground situate on the east side of Seymour Place in the parish of St Marylebone in the County of London … together with the buildings erected thereon and known as 1-12 Mertoun Terrace 70 Seymour Place 2-26 (even numbers inclusive) Bryanston Mews West and 5 Bryanston Place which said pieces or parcels of ground are with the boundaries and abuttals thereof more particularly described in the plan drawn hereon and thereon coloured in different shades of pink …”.
The lease plan shows an outline of the building coloured, as the last clause indicates in different shades of pink.
5. By an under-lease dated
“ALL THAT maisonette number 3 Mertoun Terrace, 70 Seymour Place in the county of London TOGETHER WITH the fixtures and fittings now in or upon the said premises which said maisonette and the appurtenances belonging thereto are situate on the first second and third floors and are delineated on the floor plan annexed hereto and thereon colour blue and are hereinafter called the demised premises”.
The lease plan shows a first floor hallway, a second floor and third floor containing the rooms which I have described above. It is agreed that to a limited extent the third floor bathrooms have been reconfigured but not in a way material to the matters which I have to decide. I have also been shown a series of photographs of the interior, exterior and roof of the maisonette and terrace.
6. Apart from the skylights on the roof there are various antennae, flues and small structures or housings which contain the water tanks and down pipes for the maisonettes immediately beneath them. There is no access to the roof from the inside of the maisonettes; I was only able to go up onto the roof because the trial took place at a time when scaffolding had been erected to the exterior of the terrace while works of repair were carried out to the building. The roof itself has the appearance of one continuous structure with no divisions relating to the individual maisonettes beneath it.
7. It seems to me, and in so far as necessary I find that the skylights form part of the original design and construction of the building. The fact that they consist of holes which have been sunk into pre-formed concrete slabs, their positions relevant to the various rooms inside the maisonette and their general appearance from the roof all lead me to those conclusions. The internal spaces illuminated by the natural light that enters the maisonette via the skylights would be very substantially less attractive and suitable for domestic or residential use if the skylights did not exist.
8. From my site visit it was also perfectly obvious to me, and again I find, that if an additional storey were to be constructed on the roof of the terrace, with the inevitable result that the roof lights were blocked, a very substantial quantity of natural light would cease to enter the maisonette though the roof lights. It was apparent that once the internal doors of the maisonette were closed there would be no natural light in the first floor hallway, the second and third floor staircase, the third floor landing and the third floor internal bathroom where, at the date of the site visit, there was plenty of light.
Demise of roof and air space
9. The Defendants contend that on a proper construction of the Lease both the roof and air space above it were demised to their predecessors in title so that the erection by the Claimant landlord of an additional storey above the maisonette would be a trespass. The Claimant, on the other hand, contends that there is nothing in the Lease to drive the court to the conclusion that either the roof or air space above it were so demised.
10. It is common ground that I should approach the question of construction in the way suggested by Lord Hoffman in Investors Compensation Scheme Limited v
“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred by Lord Wilberforce as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars: the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Limited v Eagle Star Life Assurance Co Limited [1997] AC 749.
(5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201:
“If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flout business common-sense, it must be made to yield to business common-sense”.
…”
11. The Claimant submits that a very important factor forming part of the background against which I should construe the relevant parts of the Lease is the physical nature of the terrace itself. I am asked to take into account that the roof is a single continuous roof, as if it were a roof of a block of flats, that there is no access to the roof from inside the demised premises, that the tenants not only cannot but appear under the Lease to have no right to use the roof and that, if the roof had been demised, the tenant of the maisonette, being the upper part of the terrace at that particular point, would not only be expected to have access to the roof and would be entitled to use it as a terrace, subject to planning consent, but also would own the fixtures and fittings such as the tanks and flues on the roof even though they might only serve the lower maisonette whose address is 8 Bryanston Mews West. The Defendants ask me to take account of the design and layout of the maisonette and the integral part played by the skylights which serve it. It is suggested by the Defendants that the terrace cannot possibly have been designed for its current use without the existence of the skylights. I am asked to bear in mind that this is a maisonette rather than a flat, that it is not the same as a flat but looks and feels and is intended to look and feel like a house. Indeed from the front the terrace looks like a row of houses. Inside the maisonette does indeed appear more like a small house than a flat.
12. Both counsel submitted that the terms of the Lease supported their clients interpretation of it and it is therefore important that I look at those provisions in some detail.
13. The description of the premises demised by the Lease begins by describing them as “Maisonette Number 3” and subsequently as the “said maisonette”. The Claimant submits that I should view this not as a division of a building into two maisonettes in the traditional sense but more akin to a block of flats (albeit in horizontal terrace rather than vertical tower form) and that one does not therefore start with an inference that the roof and top of the building belongs to the upper maisonette with the foundations and lower parts belonging to the lower maisonette. It is common ground that the terms of the demise, which I have set out above, are equivocal as to the vertical extent of the demise. Neither counsel attached any significance to the expression “the appurtenances belonging thereto”. Mr Pearce QC attached some importance to the words “adjoining” and “neighbouring”in the following passage:
“AND TOGETHER WITH a right of way in common with the Lessors its servants and other Lessees of the adjoining premises over the entrance way to the demised premises shown coloured brown on the said plan AND TOGETHER ALSO WITH the use in common with the Lessors and its servants and other Lessees of the gas, air and water and soil pipes and ducts and the electric wires and other installations in the neighbouring premises belonging to the Lessors for the service of the demised premises …”.
He submitted that the rights granted by that provision over land not demised to the Defendants clearly referred to premises on either side of the maisonette and were not apt to describe the roof which, by inference, is to be taken to have been demised to them.
14. Both parties seized on the following exception and reservation as supporting their case, bearing in mind the way in which the building had been constructed:
“EXCEPT AND RESERVING to the Lessors … [the] power to the Lessors … to enter the demised premises for the purpose of inspecting repairing … the outside wood and iron work and the exterior walls and roof of the demised premises …
The Defendants say that:
(1) the expression “roof of the demised premises” clearly indicates that the premises had a roof which was demised by the Lease;
(2) the walls and roof are treated identically by this sub-clause;
(3) they are “of” the demised premises and therefore not separate from or above the demised premises;
(4) where the clause goes on subsequently to refer to management of the demised premises and “the adjacent or neighbouring buildings of the Lessors” that is a clear reference to properties next door and not other features of the terrace such as the roof.
Mr Radevsky for the Claimant submitted that the maisonette does not in fact have a roof belonging to it, although there is a roof above it, and the expression “roof of the demised premises” means the roof above rather than a roof comprising part of it. He was not prepared to comment on whether “the exterior walls” are demised to the Defendants but, if, they appear to form part of the demised premises, the Claimant draws a distinction between the walls and the roof referred to in the clause. In my judgment the Defendants’ submissions have a compelling logic to them.
15. The Claimant also relies on the case of Delgable Limited v Perinpanathan [2006] 1 EGLR 78 where, in construing a repairing covenant in a lease, the Court of Appeal held that although the external walls in that particular case were included in the demise it did not follow that the roof was necessarily included. In that case there was no reference, as there is in this case, to a compendious phrase such as “the outside wood and iron work and the exterior walls and roof of the demised premises …” and while I accept, of course, the logic of what the Court of Appeal said in that case it is merely a starting point in construction of the relevant provisions of this Lease.
16. The only other express reference to the roof in the Lease is to be found at clause 5(x)(c) which provides as follows:
“AND THE LESSORS HEREBY COVENANT with the Lessee in manner following that is to say … to maintain, cleanse, repair and where necessary renew in a good and workmanlike manner … the main structure and roof of the demised premises …”.
The tenants say that this is an express and unambiguous indication that the roof is included within the demised premises whereas the landlord says that properly construed the words which I have quoted do not mean that the roof of the building is included within the demise of the maisonette and that the expression should be construed as referring to the roof lying above the demised premises. The landlord again relies on its argument that the structure of the Lease in this respect is the same as a lease of a block of flats and that, viewed in the context of a lease imposing repairing obligations on a landlord with corresponding obligations on a tenant to pay via the services charges the cost of carrying out such repairs, it can be seen that really the draftsman of the Lease clearly intended the roof to be retained by the landlord whose obligation it was to carry out such repairs.
17. Clauses 2(5), (20), 5(4), (5) and clause 3 of the schedule to the Lease all tend to suggest that the “demised premises” have both an interior and an exterior. If that were not so a number of the expressions and provisions which are contained within those sub-clauses would be entirely inapt. It is submitted on behalf of the tenants that for the expressions used in those sub-clauses to have any effect the whole width of the external walls of the maisonette must have been included in the demise. It is said that it then follows that there can be no valid distinction between the walls, as external parts of the maisonette, and the roof, the inside face of which forms the interior or ceiling of the maisonette, there being no roof void in this case.
18. Weighing the various arguments it seems to me that they favour the tenants and that, albeit not expressly provided for, the Lease will only operate as it was clearly intended to do if the roof formed part of the premises demised by it. Four things lead me to that conclusion: first, it is clear from the structure and design of the maisonette that the roof with its skylights was always intended to be an integral part of the maisonette itself; secondly. the express reference in the phrase in the exceptions and reservations “the exterior walls and roof of the demised premises” to the roof is a strong indication that they are to be treated in the same way as the exterior walls which is plainly that they are part of the demised premises; thirdly, the landlord’s repairing obligation contains the similar expression “main structure and roof of the demised premises” again treating the roof in the same way and placing it in the same category as the walls and structure of the building; fourthly, the fact that the interior of the roof is the ceiling of the maisonette and the Lease indicates that the interior and exterior of the maisonette are demised is a strong piece of support for the earlier three reasons.
19. There is an ancillary question as to whether and if so how much of the air space above the roof is also demised. The Defendants contend that if the demise includes the roof then it should be construed as including such of the air space above the roof as is included in the landlord’s own title and they rely in support of that contention on Davies v Yadegar [1990] 1 EGLR 71 at 72E. It is pointed out by the Claimant that in Davies roof space was expressly demised. I was also referred to the cases of Straudley Investments v Barpress Limited [1987] 1 EGLR 69, Hatfield v Moss [1988] 2 ELGR 58 and to a passage from Dowding & Reynolds, Dilapidations the Modern Law & Practice (3rd Edition) however it is plain from those cases and the quotation from the text book that the decisions in each case are fact specific and the question is one of construction against the particular factual matrix of each case. In the circumstances, I do not find that any of those cases are determinative of the question before me.
20. It is part of the relevant factual matrix in this case that there are features of the roof, such as the upstands and lenses which form part of skylights, which protrude beyond the flat surface of the roof. There are tanks and other items on the roof serving the maisonette and the one beneath it, in respect of which the lower maisonette has the rights excepted and reserved in clause 1 of the Lease. Chief among those facts are the presence and intended function of the skylights. It is reasonable to assume in my judgement that the parties intended the tenants to have the benefit of the skylights and if the tenants did not have ownership of a reasonable amount of air space above the skylights the intention behind the structure and design of the terrace would be defeated. Against that background, and irrespective of the inference that in my judgment is to be drawn from a demise of the roof itself, it is reasonable to come to the conclusion that the tenants are also entitled to enjoyment of such of the air space above the roof as is reasonably necessary for the use and enjoyment of the maisonette and the fixtures, fittings and other features of it. In those circumstances I find that the Defendants’ contention is correct.
A right to block the skylights?
21. Having reached the conclusions that I have in respect of the demise of the roof and air space, technically it is not necessary for me to deal with the second question raised by the Claimant in these proceedings, namely whether the Claimant is entitled to erect additional premises on the terrace notwithstanding that this will involve blocking the skylights. However in case this matter should go further I will address that second issue on the premise that the roof and part of the air space above it are not demised to the tenant.
22. The Claimant starts by making the simple point that prima facie the Claimants are entitled to do what they like with their own property and that includes developing it by the erection of a further storey on the roof. The Defendants say that there are two reasons why the landlord would nevertheless be prevented from developing the roof, the first being that to do so would be a derogation from grant (alternatively infringement of the right to light to the skylights) and secondly it would be a breach of the landlord’s covenant to repair the roof of the maisonette. The landlord says first that there would be no actionable interference with the tenants’ rights and that even if there were an interference it is expressly permitted by clause 4 of the Lease and secondly, on a proper construction of the landlord’s repairing obligation, there would be no breach of covenant because a replacement of a roof, albeit at a different level to the original roof, is compliance with and not a breach of the obligation to repair.
Derogation from grant
23. In reliance on the decision of Mr Justice Parker in Browne v Flower [1911] 1 Ch 219 the Defendants submit that the works proposed by the Claimant would render the premises demised by the Lease “unfit or materially less fit for the particular purpose for which the grant or demise was made” and would amount to an actionable interference because of the necessary detriment which would be suffered as a result of the blocking of the lights. As Lord Justice Nicholls observed in the case of Johnstone & Sons Limited v Holland [1988] 1 EGLR 264 the principle of non-derogation from grant
“is a principle which merely embodies in a legal maxim a rule of common honesty. It was imposed in the interest of fair dealing…
[see] Lord Denning MR in Molton Builders Limited v City of
“…If one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of that benefit: because that would be to take away with one hand what is given with the other”.
Later in his judgment Lord Justice Nicholls describes the thinking behind the doctrine of derogation from grant as a “broad, common-sense rationale”.
24. In answer to this submission the Claimant says, essentially, two things, first, that there would be no derogation from grant in this case because there would be no interference with the tenants’ alleged right to light even if the skylight were blocked because the tenants would still enjoy light through other windows in the maisonette and secondly, and in any event, clause 4 of the Lease specifically entitles the landlord to interfere with a right to light in just the way proposed.
25. Having seen the premises I formed the view that the position and use of the skylights were integral features of the overall design of the maisonette and further I formed the view that if the skylights were to be blocked those parts of the central portion of the maisonette that were formerly lit by light falling through the skylights would be totally dark unless artificial lights were introduced. It seems to me that the blocking of the skylights would render the premises materially less fit for the purpose for which they were let and the landlord would thereby substantially deprive the tenants of the enjoyment of the maisonette. Further, I accept the submission of Mr Pearce QC that such acts are capable of amounting to derogation from grant whether or not it is an express or implied right to light which is said to be interfered with. Such seems to me to be the natural consequence of what was said by the learned judges in the two cases which I have referred to.
26. Nevertheless the tenants contend that an easement of light has been acquired by implied grant, it is common ground that there is no express grant of such a right under the Lease, as a result of the light which has over the years flowed through the skylights into the maisonette. Given the design of the terrace and the position and use of the skylights I would hold that by user or by implied grant a right to light through those particular apertures has been acquired by the tenants as against their landlord. It is common ground that the extent of the light to which such a right is acquired is the light required for the beneficial use of the maisonette for any ordinary purpose for which it is adapted and that in determining whether or not there has been an actionable interference with that right the tenants must show not that there has been a reduction in the light but that the light which is left after taking into account the light coming from other sources which the tenants are entitled to enjoy is insufficient for the comfortable use and enjoyment of the maisonette according to the ordinary requirements of mankind. That is a test which according to the decision of the House of Lords in Jolly v Kine [1907] AC 1 is to be applied on a room by room basis: see Lord Atkinson’s speech at page 7. The landlord here says that there is no evidence on which I can come to the conclusion that the proposed construction works would amount to an actionable interference. However it seems to me perfectly plain, and I am entitled to hold, that blocking the skylights so that the internal parts of the maisonette would receive no natural light at all is an infringement of the implied grant of a right to light through the skylights.
27. The landlord says in any event, and whether or not there would otherwise be an actionable interference with the tenants’ right to light, that the provisions of clause 4 of the Lease permit them to carry out the works which are proposed. Clause 4 provides as follows:
“PROVIDED LASTLY AND IT IS HEREBY AGREED AND DECLARED that notwithstanding anything herein contained or consequent hereon the Lessors and the Superior Lessors and all persons authorised by them respectively shall have power without obtaining any consent from or making any compensation to the Lessee to deal as they may think fit with any of the lands and hereditaments adjacent or near to the demised premises and to erect or suffer to be erected upon such adjacent or neighbouring premises any buildings whatsoever whether such buildings shall or shall not affect or diminish the light or air which may now or at any time during the term hereby granted be enjoyed by the Lessee or the Tenants or Occupiers of the demised premises”.
In support of its submission that clause 4 permits the blocking of the skylight notwithstanding what would otherwise be allegedly an actionable interference with the right of light the landlord relies on the following passages from Gale on Easements (17th Edition) starting at paragraph 13-19:
“It is quite common, particularly in Leases, to find the grant of an easement qualified by a reservation of a right to develop or alter the servient tenement in such manner as a servient owner shall think fit, notwithstanding that the access of light or air to the dominant tenement and (sometimes) any other easement appurtenant to the dominant tenement may be obstructed or interfered with. The effect of such a provision is a matter of construction in each case but the court will lean against a construction which would entitle the servient owner to deprive the dominant tenement of all access of light and air or the whole benefit of any other easements such as a right of access.
“Such provision may however, permit acts which would otherwise amount to an unjustified obstruction to or interference with an easement and would otherwise be an actionable nuisance but not acts which would for practical purpose destroy the easement. In that case the servient owner can obstruct or interfere with a dominant owner’s rights, provided the dominant owner is left with reasonable enjoyment of them, though not necessarily in so convenient a manner or to such an extent as at the date of grant.”
28. The landlord says that on its proper construction this clause permits the landlord to interfere with the tenants’ right to light and secondly and in any event since the proposed building works would not deprive the tenant of all access to light, when one bears in mind the windows in the front and rear walls of the maisonette, the court would give effect to the intention of clause 4, as properly construed, by permitting the blocking of the skylights.
29. The tenants rightly submit in my judgement that the clause contains two parts the first being “to deal as they think fit with any of the lands and hereditaments adjacent to or near the demised premises”. That part of the clause does not seem to have any direct relevance to this particular issue because “deal” means, in my judgment, sell, let or create rights in respect of adjacent or nearby lands and hereditaments in a commercial sense and not what is proposed here namely the carrying out of works of construction. The second part of the clause is however more apt and permits the landlord to
“..erect or suffer to be erected upon such adjacent or neighbouring premises any buildings whatsoever.”
In my judgment this part of the clause does not help the landlord either. Properly construed it seems to me that this part of the clause is limited to permitting the landlord to erect a new building but does not authorise the alteration of an existing building. Secondly, the use of the words “adjacent or neighbouring premises” are not apt to describe the roof and air space above it but buildings on either side or indeed near to the maisonette. Thirdly, the erection of such buildings is permitted notwithstanding that it might “affect or diminish the light or air” enjoyed by the demised premises but not entirely prevent the passage of light or air. Properly construed it seems to me that such right permits the landlord to reduce but not altogether block the light passing through the skylights.
30. In relation to that third point the tenants rely on the decision of Mr Justice Vinelott in Overcom Properties v Stockleigh Hall (1988) 58 P & CR1 in which the court was being asked to consider a similar proviso which it had been submitted should be limited by an implied term. The Learned Judge dealt with that question in the following way:
“However, the real question, as I see it, is not whether a term can be implied in the sense of being added to the provisions of the lease in order to give business efficacy to it, but whether paragraph 5 construed in the context of the lease as a whole and in the light of the surrounding circumstances and or the presumed purpose of the lease is capable of being interpreted in a way which does not lead to the absurd consequence that the lessor has an unrestricted right to deprive a flat of all access of light and air and of any access and of any other easement enjoyed with it – that is, in a different sense of the word, what is implicit or capable of being spelled out in the lease.
It seems to me that, looking at the lease as a whole and to the situation of the flat and the entrances, the words “obstructed or interfered with” should be read as permitting acts which would otherwise amount to an unjustified obstruction to or interference with an easement and which would otherwise by an actionable nuisance but not acts which would for practical purposes destroy it …”.
31. Mr Radevsky for the landlord submits that the factual situation in Overcom is very different to the stopping up of a skylight in a hallway and one bathroom in the present case, which, he submits, would not amount to a destruction of the right of light. Mr Pearce QC for the tenant submits that Mr Justice Vinelott’s reasoning can be applied in the current situation albeit with necessary modifications. Applying what was said by the learned judge to the current case it seems to me that for practical purposes the right of light through the skylights would not merely be interfered with but would be destroyed if the landlord were to be permitted to construct a further storey on the top of the terrace. For that reason, and those given above, it seems to me that clause 4 does not permit the landlord to carry out the works in the way suggested by it.
The landlord’s repairing covenant
32. The tenants contend that it would be a breach of the landlord’s repairing covenant, which I have set out above, to block the skylights. The reasoning for that submission is that a covenant to repair includes an obligation not to destroy it. In support of that submission a decision of His Hon. Judge Rich QC sitting as a member of the Lands Tribunal in Devonshire Reid Properties Limited v Trenaman [1997] 1 EGLR 45 is relied on. That decision was heavily criticised by Mr Bernard Livesey QC sitting as a Judge of the Chancery Division in Hannon v 169 Queen’s Gate Limited [2000] 1 EGLR 40 as a “pedantic legalistic approach”. The learned editors of Dowding & Reynolds, Dilapidations, the Modern Law and Practice (3rd Edition) at paragraph 18-3 say that:
“The correct principle is therefore that there is no rule one way or the other, and the question of whether, and if so, to what extent, a covenant to repair obliges the covenanting party not to destroy the subject-matter of the covenant is in each case a question of construction of the lease in the light of the admissible background”.
33. Mr Radevsky submits that the roof, which is the subject matter of the repairing obligation, is not being removed or damaged but is merely being replaced after having been raised up a storey and that accordingly even if the Devonshire decision is correct the roof would not be destroyed. The difficulty with this part of the overall argument is that there is no evidence before me as to the precise nature of the works involved and the only inference I can draw is that the skylights will be blocked. I do not know whether the skylights would be removed or destroyed nor do I know what will become of the other objects on the roof itself. In those circumstances it seems to me that I am not in a position effectively to construe the Lease so as to determine whether or not what is proposed by the landlord would be a breach of the repairing obligation or not.
Conclusion
34. For the reasons given above I would dismiss the claim for the declarations sought by the Claimant and I will hear counsel on the precise form of the order which I should make in those circumstances.
