Fanfare Properties Ltd, Trevor Spiro v Grafton Estate No.2 LP (Nominee One) Ltd & Ors (2012)
Where a deed permitted the owner of a building to enter upon a neighbouring property to install windows, that did not permit the erection of scaffolding on the neighbouring land in order to take down a wall and replace it with glass panels. That was not changed by describing the proposed works as installation of a "windows system".
The applicants (F) applied for summary judgment for a declaration that certain works which the respondents (G) sought to carry out, and which required access to F's land, were not permitted within the terms of a deed.
F held the lease of a passageway running between buildings. In 1996 they entered into a deed with the landlord of the passageway and the abutting buildings. The deed, anticipating development by the landlord, incorporated cl.4.2, dealing with rights granted over F's property, including cl.4.2(c), under which the landlord could "install and retain outward-opening windows" overhanging F's property, and cl.4.2(f), which allowed the landlord to enter upon F's property with scaffolding and equipment for the purposes permitted under cl.4.2. The development did not take place. G became landlords of the buildings and F's passageway. They sought planning permission for works including the removal of windows and surrounding panels and brickwork from the buildings, to be replaced by large glass panels which opened outwards. That required scaffolding to be placed on F's land. F sought a declaration that erecting such scaffolding would constitute a trespass on their land.
G argued that (1) the declaration would serve no useful purpose; (2) the works and scaffolding were permitted by the 1996 deed under cl.4.2(c) and (f) as they would be installing a windows system.
(1) If granted, the declaration would serve a useful purpose. G had sought planning permission; it was a proper inference that they intended to carry out what they had applied for. There was a dispute as to whether the proposed method of doing the work would infringe F's rights; that could usefully be resolved so that G could alter their method to ensure that there was no infringement. Nor was it right to say that the declaration would be useless because it did not tell G what they could do. The court did not perform an advisory function in such circumstances. Nonetheless, it was likely that the parties would gain assistance outside the strict terms of the declaration or the refusal to grant it. In considering whether to grant the injunction, points of construction would have to be decided; such findings were likely to be binding on the parties and thus give guidance on their future conduct (see paras 23-26 of judgment). (2) Giving the word a common-sense meaning in its present context, what G proposed to do was not installation at all. In reality, they were demolishing a wall and putting up a new one. Even allowing for outward-opening windows being included in the new wall, the process was not properly described as installation of those windows. The parties to the deed had contemplated placing a window in an existing context; that was not what G proposed. A new facade was being placed on the land, not just windows. That was not changed by describing it as a "windows system". Nor did it improve the chances of making it a window by making sure that the rest of the "system" was made of the same material as windows. The activities did not come within the activities described in cl.4.2(c) (paras 35-39). (3) The construction of the relevant document, the relevant facts and the legal argument were clear enough that it could be said that G had no real prospect of defending the claim. No useful purpose would be served by a trial. G intended to erect scaffolding on F's land for a purpose not within cl.4.2. Accordingly, they were proposing a trespass; it was right to grant the declaration (para.45).
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22 Oct 2012
LTL 9/11/2012 :  EWHC 2918 (Ch)