Landlord and tenant — Block of flats held mainly by long leaseholders, with a few protected tenants — Lessors’ scheme for provision of numbered parking spaces in the forecourt of the block challenged by occupiers — Forecourt attractively laid out with flower beds and constituting a visual amenity — A previous scheme by the lessors to surface an area occupied by two central flower beds and create 19 parking bays was refused planning permission — Planning permission had not yet been sought for the scheme now proposed and the lessors’ attitude was that such permission might not be necessary — The present proceedings concerned the effect of the scheme in relation to powers in the leases, which were in a standard form —- The lessors sought declarations that they were entitled to delineate 10 numbered parking spaces on the forecourt and to grant exclusive licences for their use — The attitude of the residents was that allegations of congestion, difficulty of parking and problems of access by delivery vehicles were exaggerated
arose for decision — The first was the extent to which the proposed scheme, if
carried out, would amount to a substantial interference with the lessees’ right
of access over the forecourt — The second was whether any such substantial
interference was permitted by provisions in the standard lease — In answer to
the first question the judge, who had himself visited the site, found that the
scheme would be likely to amount to a real and substantial interference with rights
of way over the forecourt, impeding access and causing inconvenience — As
regards provisions in the lease, however, there were very wide powers given to
the lessors in Schedule 5, para 5, which permitted acts which might otherwise
count as interference with an easement or as an actionable nuisance — Lessees
would not, however, be deprived of all reasonable access — The judge reached
this conclusion ‘with regret’ — He doubted whether the lessees, when they took
their leases and paid substantial sums for them, fully appreciated the extent
of the rights reserved to the lessors — Judgment for lessors
The following
case is referred to in this report.
Pettey
v Parsons [1914] 2 Ch 653
This was an
originating summons by which the lessors, originally Overcom Properties Ltd but
later their successors in title, Samplemedium Ltd, sought declarations as to
their powers under leases of the flats in the block called Stockleigh Hall, in
Prince Albert Road, facing Regent’s Park, London NW1. The first defendants were
Stockleigh Hall Residents Management Ltd, a company formed to manage the block
of flats for the benefit of the lessees. The second and third defendants, Mr
and Mrs Nadler, were lessees of one of the flats and the fourth defendant was a
Mr Blitz, who was chairman of the management company and whose wife was a
lessee.
Paul Morgan
(instructed by Green David Conway & Co) appeared on behalf of the
plaintiffs; Paul de la Piquerie (instructed by Freeman Box & Co)
represented the defendants.
Giving
judgment, VINELOTT J said: This is an application by a company called
Samplemedium Ltd which recently acquired the freehold of a block of flats in
Prince Albert Road facing Regent’s Park, which is called Stockleigh Hall. After
it acquired the freehold of the block, Samplemedium Ltd was substituted as
plaintiffs in these proceedings in place of its immediate predecessor in title,
a company called Overcom Properties Ltd by which company the proceedings had
been originally commenced.
The first
defendant, the Stockleigh Hall Residents Management Ltd (which I will call the
management company) is, as its name suggests, a company formed to manage the
block of flats for the benefit of the lessees, each of whom holds one share in
the management company. The necessary moneys are provided by service charges
payable under the leases of the flats.
The second and
third defendants, Mr and Mrs Nadler, are joint lessees of one of the flats; the
fourth defendant, Mr Blitz, is and has for some years been the chairman of the
management company. He lives in another flat in the block, of which his wife is
the lessee.
In the
originating summons as amended the plaintiff company seeks two declarations.
The first is a declaration that it is entitled to delineate on the forecourt of
Stockleigh Hall 10 numbered parking spaces and to erect lockable posts in
accordance with plans exhibited to an affidavit in support of the application.
In fact the work shown on the plan extends beyond the erection of lockable
posts. Also, in the course of the hearing, it was accepted by the plaintiff
company and its expert advisers, the author of the plan, that it would have to
be modified in some minor respects. I shall describe the works which the
plaintiff company wishes to carry out and the modifications which it is agreed
should be made later. The issue of principle in this case is whether the
plaintiff company is entitled to mark out any permanent parking places. All
parties are anxious that the extent of the plaintiff company’s right to do so
should be determined as far as possible in these proceedings.
The second
declaration sought in the originating summons is that the plaintiff company is
entitled to grant exclusive licences, subject to the right of the management
company to use the forecourt so far as necessary to discharge its obligations
under leases of flats in the block. It is accepted by the plaintiff company
that any licences granted will have to be subject to those obligations, the
extent of which I will explain later.
I should add
at this stage that no application for planning consent for carrying out the
proposed works has yet been made. The attitude of the plaintiff company is that
planning consent may not be necessary; if it is necessary because the erection
of posts and chains will constitute a material development and if it is refused
it will modify its plans, if it can, to avoid the necessity for consent. Of
course, if it has to abandon the plan of erecting permanent posts at the
corners of each parking place and movable and lockable steel posts in the middle
of each parking place, leaving each parking place marked out with white lines
only in order to avoid the necessity of obtaining planning consent, it may not
be able to control the use of the parking places sufficiently to tempt anyone
to pay any significant sum for an exclusive licence to use them.
Stockleigh
Hall was constructed in the early 1930s and its design earned a bronze medal
from the RIBA. It comprises 61 flats: 56 are let on long leases, the remaining
five are held under protected tenancies. It is a three-sided block, open on the
side which faces Prince Albert Road, and with an interior courtyard. The
courtyard is T shaped. The upright, or stem, of the T, which runs roughly
though not precisely north-south, is approximately 60 ft wide and 170 ft long.
The entrance is narrowed by curving walls on each side and measures
approximately 18 ft 6 in. Inside the curved wall on each side is a
semi-circular flower bed which continues on each side along the front of the
building. In the body of the stem of the T there is on each side a narrow
flower bed adjoining the inside wall of the block, and beside it a flagged
footpath. The distance between the inner edge of the footpath on each side is
48 ft. A sausage-shaped flower bed, an elongated oval with flat sides, which is
12 ft wide runs down the centre of the stem. It is surrounded by a slightly
raised paved area about 2 ft wide. The gap between the outer edge of the
pavement and the paved edge of the flower bed is 16 ft 3 in on each side and
has a hard surface
flower bed between each track. The top of the T projects only a little way each
side of the stem. The corners are occupied by curved beds. There is another,
smaller, flower bed in the centre. This bed is also an elongated oval with
flattened sides. The curved ends are filled with ornamental brick, leaving an
oblong area filled with earth in the centre. The brick ends at present serve as
the base for pots and urns filled with perennials and small shrubs. The
footpath and road follow the curved line of the flower beds in the corners at
the top of the T, though the roadway is slightly wider at the point where the
road curves round the edge of the corner beds. The footpath and adjacent road
and the flower beds in the centre at the top are thus bulb shaped save that the
top of the bulb, the inside of the block on its north side, is flattened.
There are six
entrances to the block. The first (entrance no 1) lies a little more than halfway
up the stem of the T on its west side. There is an entrance (entrance no 6) in
a similar position on the other side, though it is not precisely opposite; it
is a foot or so nearer the entrance from Prince Albert Road. Then there are two
entrances (nos 2 and 3) close together on the corner at the top of the T, one
on the north and the other on the west side of that corner. That pattern is
repeated on the opposite corner at the top of the T, the entrances nos 4 and 5
being on the north and east side respectively.
The scheme
proposed provides for 11 parking places. Moving along the west side of the stem
of the T, there are two adjacent parking bays between the entrance from Prince
Albert Road and entrance no 1. They are repeated on the opposite side of the
stem. I will call those on the west side bays 1 and 2, and those on the east
side bays 9 and 10. Each bay is just over 6 ft wide and 18 ft 6 in long, the
measurements of a standard roadside parking bay. Then there is a gap 9 ft 6 in
wide opposite entrance no 1 on the one side and entrance no 6 on the other. On
the far side of entrance nos 1 and 6 are two other parking bays (bays 3 and 8)
of the same dimensions as bays 1, 2, 9 and 10. Just round the bend of the bulb
is another parking bay (no 4), which is wider in the centre than the other bays
to take account of the curve of the bulb. It ends almost opposite the south
side of entrance no 2. Bay no 4 is echoed on the opposite side by bay no 7.
Then on the flattened top of the bulb are two more adjacent parking bays (nos 6
and 7) of the standard size. Bay no 11 adjoins the south side of the flower bed
in the centre of the bulb. It is not proposed to lease it but to keep it
available for elderly or disabled lessees or visitors. It is thus a convenience
for lessees and not an essential part of the scheme. There is a concrete post
on the roadside corners of each parking bay except no 11, and in the centre of
each bay (except no 11) where it adjoins the road a hinged steel post which can
be unlocked with a key and lowered to allow a car to enter the bay. The areas
between the parking bays, between nos 2 and 3, between nos 3 and 4 and between
nos 4 and 5, and so on the opposite side, are marked on the plan ‘Keep Clear’.
The plan shows concrete bollards in the centre of the ‘Keep Clear’ areas
opposite entrances 1 and 6, and concrete bollards at regular intervals 4 ft to
6 ft apart along the roadside of the other ‘Keep Clear’ areas. The bollards are
all in line with the outside of the parking bays. As I have said, one ‘Keep
Clear’ area is opposite each of entrances 1 and 6; there are larger ‘Keep
Clear’ areas opposite entrances 2 and 3 and 4 and 5.
The dispute
between the then lessor (the predecessor of the plaintiff company) and the
lessees started in April 1985, when the lessor applied for permission to remove
the two central flower beds, to surface the area now occupied by them and to
create 19 parking bays over the sites of the flower beds, which car owners
could then be licensed to use on payment of a capital sum. Planning permission
was needed, or thought to be needed, because the conversion of the sites of the
flower beds would constitute a material development. The application was made
on April 12 1985 and was refused by the local planning authority. That was on September
3 1985. On June 23 1986 the lessor appealed to the Secretary of State and an
inspector was appointed to conduct an inquiry. His report recommending refusal
is dated August 7 1986. In the meantime there had been a change in the
position.
In May 1986
contractors employed by the management company to do extensive work to the
exterior of the block started work. They needed to erect scaffolding and to
bring substantial quantities of material on to the site. To avoid interruption
to the work, they installed iron posts bedded into movable but heavy concrete
bases on each side of the entrance to the forecourt and placed a chain between
them. The head porter was instructed by the chairman of the management company
to allow access only to residents and their licensees and to ensure that
vehicles did not stay longer than was necessary. Since then there has been only
occasional parking. I shall come back to this later. The building works and the
erection of a chain across the entrance are not mentioned in the inspector’s
report or in the evidence before him; no doubt because they were expected to be
only a temporary obstruction.
In their
evidence before the inspector, the lessors claimed that there was inadequate
provision for parking for residents and that kerbside parking had in the past
given rise to congestion. Mr Blitz, who gave evidence on behalf of the
residents, claimed that this evidence was exaggerated. He said that there were
normally between 4 and 18 vehicles parked in the forecourt and that the flow of
traffic, in particular vans entering the forecourt to deliver goods or to
collect goods from the flats, was not seriously obstructed.
Mr Blitz, in
his evidence before me, told me that the porter was usually able to find the
owner of a parked vehicle which obstructed the flow of traffic and to persuade
him to move it, albeit that there was sometimes some delay. The difficulty was
most acute at the north end because if any number of vehicles were parked there
they prevented larger service vehicles, particularly removal vans, from parking
close to the pathway and entrances and prevented them from driving round the
bulb. However, with the assistance of the porter, these difficulties were
usually overcome.
The planning
officer of the local authority who gave evidence said that he had counted as
many as 30 cars parked on the forecourt on one occasion. But he agreed that:
The existing
width of the access road round the central feature at a minimum of 5m widening
to 6m and 7.5m at the radii of the upper of the T allows both for parking and
normal vehicular access to the block. Again there is no direct evidence
submitted to indicate that normal access is a problem.
He also
expressed the view that if the development were allowed:
. . . there
is no guarantee of an orderly parking area or that the existing provision is
inadequate for emergency services. Therefore an improvement for access to
emergency services, however caused, is not considered to be sufficient
justification to warrant the destruction and removal of an important visual
amenity to the residents of the building in this case.
The primary
objection of the lessees was, of course, also founded on the effect the
proposed development would have on the visual amenities of the block. The
flower beds are attractively laid out and, as it stands, the forecourt presents
a peaceful and colourful area in keeping with the parkland opposite.
The inspector
concluded that:
The capacity
of the forecourt under present arrangements whereby cars are generally parked
parallel to the kerb would be of the order of 17 cars at maximum without double
parking, bearing in mind that the council’s standard for new flats would
require one space per flat. It is clear to me that the present capacity is well
below that required to accommodate the traffic generated. Congestion therefore
occurs from time to time and other surplus demand must be met by on-street
parking. Against this, however, I have no reason to conclude from the large
number of written representations submitted by the residents that the present
informal arrangements give rise to any significant and continuing parking and
circulation problems from their point of view. Nor am I able to conclude that
the problems occur on such a scale or so frequently that there is a serious
risk that emergency vehicles will be prevented from entering the site should
the need arise.
He thought that
the lessor’s scheme involving, as it did, parking at right angles to the kerb
might give rise to congestion, particularly at the bulb end, as well as
destroying the visual amenities.
Very shortly
after the inspector had submitted his report (on August 7 1986) the lessor
attempted to mark out 10 parking bays in the position of bays 1-10 shown on the
plan which I have described. That was in October 1986. The chairman of the
management company, and other lessees, objected strongly and as a result the
originating summons which is now before me was issued.
Before turning
to examine the leases and the issues that fall to be determined, there is one
other chapter in this history which I should explain. The builders finished
their work in May 1987. On the day that they left, the management company
replaced their posts and chain with substantial permanent posts with a chain
between them. The then lessor immediately applied for and obtained a mandatory
injunction calling on the management company to remove them on the ground that
they constituted a trespass to his land. However, since then the chairman of
the management company with the assistance of a new and vigilant head porter
has succeeded in controlling the parking, and since May 1987 there have
normally been fewer than four cars parked on the forecourt at any given time.
I turn next to
the terms of the leases. They are all in standard form and I need refer to only
one of them. They were all granted in the late 1970s or early 1980s and are
long leases at a low rent and were granted in consideration of a substantial
premium. The specimen lease exhibited is a lease granted on February 10 1977 to
the second and third defendants. The parties are the lessor, the management
company and the lessees. The recitals include a number of definitions. There
are conventional definitions of the lessor and the lessees, of the property, as
in effect the block of flats and its curtilage (described by reference to a
Land Registry title no) and of ‘the Reserved Property’ which includes:
. . . the
grounds and forecourt forming part of the Property and the halls staircases
landings lifts lift well box rooms and other parts of the building forming part
of the Property . . .
as well as the
other common parts of the main structure of the property and its roofs and main
and supporting walls.
Clause I
contains a demise for a term of 99 years at a premium of £36,000 of a flat
‘together with the rights, set out in the Fourth Schedule hereto’ but:
. . . SUBJECT
to the rights set out in the Fifth Schedule hereto (which so far as not already
affecting the Lessor’s estate in the Property are hereby excepted and reserved
from this demise) . . .
This clause
provides for the payment, in addition to a modest rent, of a service charge for
the management company, calculated in accordance with the provisions of the
Sixth Schedule.
The rights
granted by Schedule 4 include:
The right for
the Lessee and persons authorised by him in common with the lessor the Owners
and Occupiers of all other Flats and all others having the like right to use
for purpose only of access to and egress from the Premises all such parts of
the Reserved Property . . . as afford access thereto.
And also para
5:
The right for
the Lessee and persons authorised by him to use in common with the Owners and
Occupiers of all other Flats and their visitors the forecourt forming part of
the Reserved Property but solely for the purpose of access to and egress from
the Premises and for no other purpose.
The rights
excepted by Schedule 5 include in para 5:
The right for
the Lessor at any time or times hereafter to rebuild add to develop extend
alter reconstruct and to improve or use the Reserved Property or any part
thereof or any building adjoining or adjacent to the Property or neighbouring
land or to erect new buildings on any property so adjoining or so adjacent or
so neighbouring according to such plans (whether as to height extent or otherwise)
and in such manner as the lessor shall think fit notwithstanding that the
access of light or air to or any other easement for the time being appertaining
to or enjoyed with or by the Flat or any part thereof may be obstructed or
interfered with or that temporary annoyance or disturbance may be caused
thereby or that the Lessee might otherwise be entitled to object to by reason
of such rebuilding alteration or use.
Clause 2 of
the lease contains a covenant by the lessee with the lessor and as a separate
covenant with the management company to observe the obligations and regulations
set out in the Sixth Schedule. They include (para 37):
Not to use
sit or walk or do any other thing on or to the ornamental gardens (if any) and
not obstruct or leave any motor vehicle or other object in or on any forecourt
or roadway forming part of the Reserved Property.
Clause 3
contains a covenant by the management company with the lessee and as a separate
covenant with the lessor to observe and perform the obligations on its part set
out in the Seventh Schedule. The Seventh Schedule, in effect, imposes on the
management company the obligation to pay rates on the property, to insure it
and, if necessary, to rebuild it and to keep the Reserved Property in good and
tenantable repair.
Clause 5 I
should read in full:
FOR the
purpose of maintaining managing administering and controlling the Property and
for the better protection of the amenities of the Property the lessor HLREBY
COVENANTS with the Management Company and as a separate covenant with the
Lessee that it will afford all such access over the Reserved Property as shall
be necessary to enable the management company to carry out its obligations
hereinafter set forth . . .
Clause 7(iii)
provides that:
The
Management Company may at any time or times during the term hereby granted in
the interests of good estate management impose such regulations of general
application regarding the Property or the Flats and the curtilage of the
Property as it may in its absolute discretion think fit in addition to or in
place of any regulation or covenant or stipulation on the part of the Lessee
herein contained (but so that any such regulations shall not conflict with the
terms of this Lease) and the Management Company shall have power in its
absolute discretion to revoke amend or add to such regulations or any additions
thereto or substitutions therefor.
I should have
mentioned that Clause 6 contains the usual provision that the lessee paying the
rent and performing his covenants shall peaceably hold and enjoy the premises
without interruption by the lessor.
That is all I
need say about the background history and the terms of the leases. Two
questions arise. The first is to what extent the proposed scheme if carried out
would amount to a substantial interference with the lessees’ right of access
over the forecourt. The second is whether anything proposed to be done which
would amount to a substantial interference with the lessees’ rights of access
is permitted by para 5 of Schedule 5.
On the view I
take as to the construction and effect of para 5 of Schedule 5, it is strictly
unnecessary for me to decide the first question. However, as this case may go
further and as I have heard expert evidence and have myself visited the site, I
should, I think, express my views on it.
The first
question
It is trite
law that in the case of a private right of way over a defined area the owner of
the dominant tenement cannot complain of any use of or erection by the servient
owner on the right of way but only of something that amounts to a substantial
interference with the right of way. The principle is stated in a well-known
passage in the judgment of Lord Cozens Hardy MR in Pettey v Parsons [1914]
2 Ch 653 at p 662 in the following terms:
It must not
be forgotten that the rights of interference with a right of way are by no
means the same in the case of a public highway as in the case of a private
road. In a public highway any obstruction is wrong if it is appreciable. That I
think is the recognised distinction. Any appreciable obstruction in a highway
can be prevented by indictment or otherwise, but in the case of a private right
of way the obstruction is not actionable unless it is substantial. There must
be a real substantial interference with the enjoyment of the right of way.
The question
therefore is whether the carrying out of the proposed scheme would amount to a
substantial, a real interference with the enjoyment of the rights of way over
the forecourt. In approaching this question it must be borne in mind that when
the leases were granted the forecourt was laid out, as it is now, with a road
running along each side of the main stem of the T and round the top of the
bulb. It must have been contemplated that licensees of the lessees would from
time to time want to use the road with vehicles suitable for delivering goods
and on occasion large loads — for instance, when a lessee moved in or moved out
or when substantial works were carried out to flats. It would be unreasonable
to expect a vehicle to back out into the Prince Albert Road, which is a busy
road, or to back round the ornamental bed at the roadside end of the stem of
the T. The lessees are, I think, entitled to object to any obstruction to the
roadway that would make it impossible for vehicles of the kind that might be
expected to want access to the flats to park and load or unload and to continue
round the roadway and out on to the far side.
It is quite
plain and it is not in dispute that parking bays 5 and 6 prevent vehicles from
driving around the top of the bulb. The bollard in the centre of the ‘Keep
Clear’ area between parking bays 3 and 5, which is at the beginning of the
curve and projects furthest into the road, also makes it impossible to turn any
but the smallest vehicle into the bulb at this point; and that is so, even if
no vehicle is parked in parking bay 11 (which, as I have said, is a facility
offered to the lessees and not an essential part of the scheme).
Having seen
only the plan and having heard the experts’ explanations of it, I felt some
doubt whether parking bays 5 and 8 would similarly prevent the reasonable use
of the roadway by bringing vans up to and around the bulb. Having seen the site
and having driven round the roadway, I have no doubt that they do, and would do
so even if the bollards shown along the ‘Keep Clear’ areas were not erected.
The area at the top is in fact very small and any sizeable vehicle would find
it difficult to negotiate the top end if a vehicle is parked in these bays.
Moreover, if bays 3 and 8 are occupied by vehicles there will be nowhere where
a van delivering goods to entrances 1 and 2 and 5 and 6 can pull in and park by
the kerb. That will be so, even if the bollards by the ‘Keep Clear’ signs are
removed, because a van parked by the ‘Keep Clear’ areas between bays 3 and 5
and 7 and 8 would obstruct a vehicle trying to get to the top and round the top
of the bulb. With a block of flats of this size with the prosperous occupiers
there are likely to be frequent occasions when delivery vans and the like, and
possibly chauffeur-driven cars, have to pull in and park for a time while delivering
or collecting goods or passengers. In these circumstances the uses of bays 3
and 5 as permanent parking places would, in my judgment, be
convenient for the lessees.
That leaves
bays 1 and 2 on the one side and 9 and 10 on the other. Before seeing the site,
I was strongly inclined to the view that these bays would not constitute an
unreasonable interference with the right of way. Having seen the site, I have
after some hesitation come to the conclusion that they would. Seen on the
ground the sides of the stem of the T have a more cramped appearance than can
be appreciated from the plan. If there were vehicles in all these bays there
would be very little space for a van, for instance, to pull in by the kerb in
the places now occupied by bays 3 and 8. It would no doubt often be possible,
but it would on occasions cause congestion, and congestion in turn would, I
think, materially affect the reasonable and convenient use of the road.
It was urged
on me on the part of the plaintiff company that the lessees were prepared to
put up with these inconveniences before the building work started and that they
ought not to complain now that the plaintiff company proposes to make a profit from
his own property by licensing others to use parking places which previously the
lessees had used in breach of the terms of the leases. There are two answers to
that submission.
First, the
licensing of parking bays for substantial capital sums is likely to cause far
more interference and interruption than the occasional and unauthorised use of
them by lessees and others who could if need arose be asked to move their cars.
The second is that if the lessees have now found that their lives are more
comfortable and convenient if they assist the management company in keeping the
use of the roadway within proper bounds, I see no reason why they should not
continue to enjoy that state of affairs and instead be subjected to the same
inconvenience as before, in order to benefit the lessor.
The second
question
Mr Morgan, for
the lessor, accepted that, notwithstanding the apparent width of para 5 of
Schedule 5, the lessor is not entitled to develop, alter or use the Reserved
Property in such a way that ‘the access of light or air to or any other
easement enjoyed with the flat’ would be totally destroyed. He submitted that
there can be implied into para 5 a proviso to the effect that the lessor is not
so to develop, alter or use the Reserved Property as to deny the lessee access
of light and air or any other easement which is necessary to the enjoyment of
the flat for the purposes for which it was demised to the lessee. He submitted
that the implied proviso or limitation should none the less, like any other
implied term, be restricted to what is strictly necessary to give business
efficacy to the lease.
Mr de la
Piquerie, for the defendants, pointed to an illogicality in this argument. If
para 5 on its true construction permits any development, alteration or use of
the site, however much the access of light and air or any other easement may be
obstructed or interfered with, the proposed proviso or limitation cannot be
added as an implied term because it would be inconsistent with the express
terms of the lease.
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 para 5 construed in the context of the lease as a
whole and in the light of the surrounding circumstances and of 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 be an actionable
nuisance but not acts which would for practical purposes destroy it. On that
view the lessor can obstruct or interfere with the lessees’ rights of access
provided that they are left with reasonable access, though not necessarily
along the roads as laid out when the leases were granted and not necessarily
one as convenient and expansive as at that date. In considering what is
reasonable access it is permissible to have regard to the fact that at the time
when the leases were granted, the lessees would in the ordinary course expect
to be able to be taken to and from the entrances by car or taxi and that, on
occasion, vans delivering goods — even, though less frequently, pantechnicons
carrying furniture — would have to be able to load and unload near the
entrances.
However,
judged by that test the proposed scheme will not, it seems to me, deprive the
lessees of all reasonable access — at least if the bollards round the ‘Keep
Clear’ areas (except perhaps in front of entrances 1 and 6) are not erected. It
will still be possible to bring a pantechnicon and a fire engine, the
dimensions of which are similar to a medium-size pantechnicon, near to the far
entrances. It could be got very close by being backed in. The disadvantage is
that the pantechnicon or van will not be able to continue round the top of the
bulb. That may well cause congestion and delay and the result will no doubt be
inconvenient and disagreeable to the lessees and their licensees. But it is, in
my judgment, the kind of obstruction or interference contemplated by para 5 and
would not deprive the lessees of all reasonable access.
I should
mention an argument addressed to me by Mr de la Piquerie. He submitted that the
right reserved to the lessor is a right to obstruct or interfere with an
easement temporarily or otherwise to cause a temporary annoyance or
disturbance. That would involve rewriting of para 5 so as to read ‘may be temporarily
obstructed or interfered with or that temporary annoyance or disturbance may be
otherwise caused thereby’. That, in my judgment, does unjustified
violence to the language used. It cannot be said that the words ‘or that
temporary annoyance or disturbance may be caused thereby’ are otherwise
deprived of any meaning or application. Para 5, in effect, gives the lessor the
right to rebuild etc, notwithstanding (a) that the works may obstruct access of
light or air or some other easement, or (b) that the carrying out of the works
may give rise to temporary disturbance or annoyance which might amount to a
nuisance or breach of the covenant for quiet enjoyment in clause 6 of the
lease.
In my
judgment, therefore, the lessor is entitled to carry out the proposed works, at
least if modified in the way I have described. The question whether the
bollards or the parking place at no 11 would unduly obstruct access will, I
think, have to be resolved if necessary by experience. As I understand it, the
lessor does not regard these features as essential and may be willing to be
guided by the lessees’ views in deciding whether or not to include them.
I reach this
conclusion with regret. It may be doubted whether the lessees when they took
their leases and paid substantial sums for them fully appreciated the extent of
the rights reserved by the lessor. But the conclusion is, in my judgment,
inescapable.
Judgment was
given for the plaintiffs with costs.
