Heronslea (Mill Hill) Ltd v Kwik-Fit Properties Ltd (2009)
A landlord was not permitted to enter tenanted commercial premises for the purpose of carrying out an "environmental survey" that involved drilling boreholes and taking samples. The lease entitled it to enter the premises for the purpose of making "surveys", but the proper interpretation of "survey" under the lease did not permit the activity that the landlord intended to carry out.
The appellant landlord (H) appealed against a court's interpretation of a lease of premises to the respondent tenant (K). K carried on business in the premises fitting tyres and other parts to cars. H wished to carry out an "environmental investigation survey", pursuant to a clause in the lease that gave it the right to enter the premises for the purpose of making a survey. It wanted to drill 13 boreholes to a depth of five metres below ground and one to a depth of 20 metres, and obtain samples for geo-environmental assessments. K refused. H unsuccessfully brought proceedings for an order that it was entitled under the lease to enter the premises to undertake its environmental survey. The court held that the meaning of the word "survey" under the lease did not include the activities that H intended to carry out. H submitted that in the context of the lease terms the word "survey" meant something more than making plans or drawings, as those activities were expressly accommodated within the words of the lease, and its meaning was not limited in any way. It argued that the parties, by their use of the word "surveys", in a modern lease containing several references to environmental matters, meant the word to have a wide meaning. It also contended that the background against which the lease was executed was relevant in that the expression "environmental survey" was already in use by lawyers, and was used in the Law Society conveyancing handbook from that period, so the lease accommodated the type of survey it wished to undertake. K submitted that the context of the word "survey" in the lease suggested activities on the surface of the premises rather than under them, and that what was contemplated under the lease was closer to a land survey, rather than any other type of survey.
The relevant question was whether the lease on its proper interpretation permitted H to enter the premises to drill boreholes and take samples, and it was clear that the reasonable person having all the background knowledge that would reasonably have been available to the parties at the time the lease was executed would not have thought so. When construing the natural meaning of the language in its context, it was appropriate to derive assistance from dictionary definitions, in particular where the ambit of the activities covered by a particular word was in doubt or dispute, Paterson v Crystal Palace FC (2000) Ltd (2005) EWCA Civ 180 applied. The Oxford English Dictionary in use at the time the lease was entered into did not contain a definition of the noun "survey" of the width contended for by H, but gave a meaning consistent with what K contended was its natural and ordinary contextual meaning. In addition, it was not possible to detach the word from its immediate context. The use of the preposition "on" in the relevant clause, and the words that followed the word "survey" itself, suggested that it meant survey of, rather than under, the premises. That was in contrast to the clause regarding hazardous waste, which specifically used the term "under". K's right to quiet enjoyment would be significantly undermined if H had the right to conduct whatever could be described as a survey at the premises, no matter how intrusive or disruptive, even if it did make good any damage. It was unlikely that the parties would have contemplated such a result when executing the lease. If such had been their intention, one would expect to find much clearer words or indication to that effect within it. It was not relevant whether H's reason for entering the premises was bona fide or not. Even if the reasonable person did have knowledge of the Law Society conveyancing handbook, it would not have assisted H's case. In any event, the question was not whether the activity that H intended to carry out was properly described as an environmental survey but whether it was a survey within the meaning of the lease.
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20 Feb 2009
Queen's Bench Division
LTL 2/3/2009 : (2009) NPC 30
Timothy Dutton QC