Development – Roof space – Right to light – Claimant landlord obtaining planning permission to add storey on terrace of houses – Defendant tenants claiming proposed development trespass on roof and air space – Whether property demised to defendants including roof – Whether claimant entitled to carry out development – Application dismissed
The claimant was the head lessee of a terrace of residential maisonettes. The defendants were the owners of a long sublease of a maisonette at the southern end of the terrace. The terrace, which was single, flat and continuous, consisted of pre-cast concrete slabs into which skylights had been set. The defendants’ property had three skylights including one that provided light to a windowless internal bathroom. The other rooms in the property had the benefit of at least one external window.
In 2006, the local authority granted the claimant planning consent for a roof extension to provide additional accommodation for each of the existing 13 dwellings, which the claimant wanted to implement by adding a storey.
The defendants claimed an extension of their lease under the Leasehold Reform, Housing and Urban Development Act 1993. They contended that, on a proper construction of the lease, both the roof and the air space above it were demised to their predecessors in title so that the erection of an additional storey would constitute a trespass. The claimant contended that there was nothing in the lease to suggest that either the roof or the air space above it were so demised.
The claimant applied to the court for declarations that: (i) it was entitled to erect additional premises on the roof notwithstanding that that would block the skylights; and (ii) the roof and air space above the maisonette were not demised to the defendants.
Held: The application was dismissed.
When construing a repairing covenant in a lease, it was necessary to ascertain the meaning that the document would convey to a reasonable person who had the matrix of facts available to the parties. Although external walls might form part of the demise, it did not follow that the roof was necessarily included. However, in the instant case, albeit not expressly provided for, the lease would operate as it was clearly intended to do only if the roof formed part of the demised premises: Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 and Delgable Ltd v Perinpanathan [2005] EWCA Civ 1724; [2006] 1 EGLR 78 considered.
It was part of the relevant factual matrix in this case that features of the roof, including parts of the skylights protruded beyond its flat surface. It was reasonable to assume 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 to be drawn from a demise of the roof, it was reasonable to conclude that the tenants were also entitled to enjoy such air space above the roof as was reasonably necessary for the use and enjoyment of the maisonette and the fixtures, fittings and other features of it: Davies v Yadegar [1990] 1 EGLR 71; [1990] 09 EG 67, Straudley Investments Ltd v Barpress Ltd [1987] 1 EGLR 69; (1987) 282 EG 1124 and Hatfield v Moss [1988] 2 EGLR 58; [1988] 40 EG 112 considered.
Had it been necessary to decide the point, it was clear that the court was entitled to hold that blocking the skylights so that integral parts of the maisonette received no natural light was an infringement of the implied grant of a right to light. The provision in the lease authorising the claimant to diminish or reduce the flow of light did not go so far as to authorise the entire blocking-up of particular windows so as to render the premises materially less fit for the purpose for which they were let and substantially deprive the defendants of their enjoyment: Overcom Properties v Stockleigh Hall Residents Management Ltd [1989] 1 EGLR 75; (1989) 14 EG 78 considered.
Anthony Radevsky (instructed by Speechly Bircham) appeared for the claimant; Robert Pearce QC (instructed by Bowen Muscatt) appeared for the defendants.
Eileen O’Grady, barrister
