Covenant – Right of way – Quiet enjoyment – Respondent taking lease of industrial unit – Respondent having right of way through industrial complex – Right of way being subject to compliance with appellant landlord’s regulations for directing traffic – Appellant blocking access to road – Whether appellant complying with terms of lease – Whether appellant breaching covenant of quiet enjoyment – Appeal dismissed
The appellant owned a large industrial complex. In 2001, it granted to the respondent’s predecessor a lease for six years with a three-year break clause of a commercial unit on the first floor of one of the buildings. This unit was to be used as a café. In 2003, it was assigned to the respondent. The lease gave the respondent a right of way over the complex for access to the demised premises provided that it observed the appellant’s regulations relating to, inter alia, the direction of traffic. The respondent also had a right to quiet enjoyment of the demised premises.
In 2004, the appellant gave notice that the southern entrance to the estate would be closed and a wall erected in order to make part of the estate suitable for residential development. The practical effect was that neither vehicles nor pedestrians could pass over and along the roadway leading to the respondent’s premises.
The respondent brought proceedings seeking damages for breaches of the covenant of quiet enjoyment and the right of way. The county court gave judgment for the respondent in the sum of £5,296, inclusive of interest. It dismissed the counterclaim for £1,272, this being the sum on a dishonoured cheque.
The appellant appealed, contending that by virtue of the proviso to the right of way and terms of which required the tenant to observe all the regulations of the landlord for the time being, relating to the direction of traffic, there was no breach either of the right of way or of the covenant for quiet enjoyment.
Held: The appeal was dismissed.
The changes that the appellant had made had not been done for the purpose of regulating traffic but in order to divide the site into two. Accordingly, the regulations did not fall within the terms of the proviso to the right of way. It was unreasonable to erect a 12ft wall in order to make a regulation for the direction of traffic. Moreover, there was probably a right to pass continuously along the road in one direction. Furthermore, on the judge’s findings of fact, the covenant of quiet enjoyment had been breached.
Per curiam: It was essential in cases of this kind, where the appeal court had to grapple with plans, maps, diagrams or photographs, that at least one plan, photograph or map left the court in no doubt about the location of all the relevant features. The skeleton arguments should also identify that photograph, map, plan or diagram at an early point, so that the court was left in no doubt when it was prereading its papers for the hearing. Very often, the Court of Appeal was either given only plans or photocopies that did not have the colouring referred to in the original documents or by the judge in his judgment, or copies with parts cut off, or without compass points or, where appropriate, a statement of the scale. Those who prepared skeleton arguments for cases or appeal bundles should bear in mind that the court needed properly and easily to understand any map, plan, diagram or photograph that was material to the appeal.
Piers Hill (instructed by Norcliffe & Co, of Huddersfield) appeared for the appellant; Darren Finlay (instructed by Chadwick Lawrence LLP, of Dewsbury) appeared for the respondent.
Eileen O’Grady, barrister
